HKSAR v. PANG CHI WING

DCCC 314/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 314 OF 2014

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REASONS FOR SENTENCE

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1.  Defendant was convicted after trial for three charges of “Trafficking in a dangerous drug” and another charge of “Possession of apparatus fit and intended for the inhalation of a dangerous drug”.

2.  The evidence of the prosecution case reveals that PW1 who was an undercover police agent posed as a customer, and on three separate occasions, on 2 January, 12 January and 13 January 2014, successfully purchased three packets of methamphetamine hydrochloride, commonly known as “Ice”, from the defendant with a nickname “Uncle Wing”. 

3.  On 12 January 2014, apart from selling a packet of Ice to PW1, the defendant also gave away an Ice pot, an Ice inhaling device, to PW1.

4.  All the three dangerous drugs are of a relatively small quantity of Ice, namely 0.68 grammes, 0.32 grammes and 0.56 grammes respectively.

5.  The street value of the 1.56 grammes of Ice in total is estimated to be about HK$666.

The defendant’s background and his criminal records

6.  Defendant is aged now 57.  He was born in Guangzhou in 1956 and he later came to Hong Kong.  He only received Primary 2 education in the mainland.  At first he worked as a mason in a construction site and later in 2007 he changed his job and started to become a sales person in a sex toy shop, earning an income of about $15,000. 

7.  He had married twice.  The first marriage was in 1981 and the defendant has a son which is now aged 30.  The second marriage took place in 2000.

8.  As far as criminal record is concerned, in the past, defendant has appeared in court in no less than 22 occasions starting from as early as 1975.  He was once sentenced to Detention Centre when he was 19 and later he was sent to imprisonment for offences such as burglary and theft.

9.  In later years, he also involved and was convicted in a series of offences relating to obscene articles for which he received custodial sentences. His last conviction is a “Possession of dangerous drugs” offence in 2013 when he was sentenced in the magistracy for 2 months’ imprisonment, suspended for 12 months.  He is in breach of this suspended sentence by reason of his present convictions.

Mitigation

10.  Ms Priscilla Lam, counsel for the defendant, accepted that the defendant pleaded not guilty to all the charges and was convicted after trial.  She said the defendant understood that a period of imprisonment was inevitable. However, Ms Lam informed the court that the defendant’s wife has just got the approval of the One-way Permit to travel to Hong Kong to settle here permanently.  It was the defendant’s wish that the court could still be as lenient as possible so that he can reunite with his wife in the near future.

11.  The defence did not dispute with the suspended sentence record which was imposed on him in December 2013 and made no submission.

12.  Finally, Ms Lam prayed in aid a Court of Appeal decision in HKSAR v Tang Tsz Yan & another, CACC325/2010, and submitted that in respect of unlawful trafficking in smaller amount of Ice, the guideline laid down by the Court of Appeal in Attorney General v Ching Kwok Hung [1991] 2 HKLRD 125 does not oblige a judge to take a starting point for sentence of 3 years’ imprisonment.  In that case, the Court of Appeal finally reduced the starting point for those charges from 3 years to 2 years’ imprisonment. 

13.  Finally, Ms Lam also asked the court to consider the principle of totality and to adjust the sentences by way of consecutive and concurrent sentences to arrive at the overall sentence.

Sentencing considerations

14.  Trafficking in dangerous drugs is of course a very serious offence. Anyone who is convicted by the court in Hong Kong for such an offence would expect no mercy from the court.  Generally speaking, for a serious offence like this, family circumstances play no part in mitigation.

15.  I note of course that the defendant had no previous similar record of trafficking and he only had one record of simple possession for which he was sentenced to imprisonment but suspended for 2 months. 

16.  Ms Lam is right to rely on the case of Tang Tsz Yan as in that case the defendant was also involved in the trafficking of a relatively small quantity of Ice. 

17.  Having considered the authorities, I too shall adopt a starting point of 24 months, that is 2 years, for those trafficking charges in this case, namely Charge 1, Charge 2 and Charge 4.  As for Charge 3, I shall adopt 6 months as a starting point. 

18.  Because the defendant pleaded not guilty and was convicted after trial, he is not entitled to any discount.

Totality

19.  After considering the question of totality, I further order that 6 months of the sentence of Charge 2 and also 6 months of the sentence of Charge 4 shall run consecutively to the sentence in Charge 1, making a total of 36 months’ imprisonment. 

20.  As for Charge 3, and also the balance of the sentence in respect of Charge 2 and Charge 4, I order that those sentences to run concurrently with the sentence in Charge 1. 

21.  As for Charge 3, I conclude that although this is a separate charge, it is only just part and parcel of the trafficking activities in general.  Further, as a matter of principle, I see no reason why I should not activate the 2 months’ suspended sentence which was imposed on the defendant by the Tuen Mun Magistracy in case no. TMCC3804/2013.

22.  As a result, the total sentence that the defendant shall receive is one of 38 months’ imprisonment accordingly.

( A Kwok ) District Judge