HKSAR v. TSANG TSZ KEUNG

HCCC 274/2025

[2025] HKCFI 6413

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 274 OF 2025

_____________________________

_____________________________

_________________________________

REASONS FOR SENTENCE

_________________________________

INTRODUCTION

1.  The Defendant, TSANG Tsz-keung, pleaded guilty in the Magistrates’ Court to one count of “Trafficking in Dangerous Drugs” (Charge 1) and one count of “Failure to Provide Specimen of Blood or Urine” (Charge 2).  He was committed to this Court for sentence, and now appears before me to be dealt with.

FACTS

2.  I adopt the Summary of Facts as admitted and confirmed by the Defendant.  

3.  In the early hours of 10 June 2024, police had established a road block on Tsuen Wan Road.  At approximately 12:57 a.m., officers stopped a private car, RN 4032, driven by the Defendant.  The attending officer noted the Defendant appeared dazed, his hands were trembling, and he avoided eye contact, leading to a search of his vehicle.

4.  A thorough search revealed a substantial and varied stash of dangerous drugs placed in several compartments within the car.  The haul included:

· 56.05 grammes of methamphetamine hydrochloride (“Ice”);

· 0.32 grammes of heroin hydrochloride;

· 4.48 grammes of cocaine; and

· 33.84 grammes of ketamine.

5.  The total estimated street value of the drugs was between HK$54,512 and HK$55,775.

6.  The Defendant was arrested for trafficking.  A subsequent Rapid Oral Fluid Test indicated the presence of heroin.  When required to provide blood and urine specimens for laboratory analysis, he refused, leading to his arrest on the second charge.

7.  In subsequent video-recorded interviews, the Defendant stated that he had collected the drugs from a park in Yuen Long on the instructions of a man known as “Ah Lung,” with the understanding that he was to work as a courier for quick money.  He admitted to consuming some of the heroin and Ice while waiting for further instructions.  He explained his refusal to provide specimens was due to his prior drug consumption and confirmed he had lost his driving licence.

BACKGROUND AND MITIGATION

8.  The Defendant is 51 years old.  He received education up to Form 3 level in Hong Kong.  After leaving school, he worked primarily as a driver.  He was unemployed at the time of the offence and resided in Tsuen Wan.

9.  The Defendant has a history of drug abuse.  He has previously been sentenced to detention at the Drug Addiction Treatment Centre.  His criminal record shows 11 previous convictions, with 7 of which are drug-related (possession). According to his criminal records, the last sentence imposed on the Defendant was 8 months’ imprisonment suspended for 3 years (“possession of dangerous drugs”) dated 27 October 2023. The present offence was therefore committed only some 8 months afterwards and he is therefore in breach of the suspended sentence.

10.  Mr. Ernest Yuen, counsel for the Defendant, submits in mitigation that:

(a) The Defendant’s role was limited to that of a courier acting under direction for a modest reward, and he was not the mastermind behind the operation;

(b) A small portion of the seized drugs was intended for his personal consumption, a factor which should be considered in mitigation;

(c) The Defendant pleaded guilty at the earliest opportunity and has cooperated with authorities;

(d) The Defendant’s unemployment and susceptibility to negative influences led him to commit the offence in an attempt to earn quick money; and

(e) In light of these factors, a discount exceeding the usual one-third for the guilty plea is warranted.

THE APPROACH TO SENTENCE

11.  In sentencing for trafficking in a cocktail of drugs, I shall follow the established six-step approach set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.  The first step requires me to determine a fair starting point by considering the type and quantity of all drugs involved.

12.  Following the guidance in HKSAR v Chan Yuk Leong (CACC 318/2013), I have considered the three recognised cross-checks for a mixed drug case: the absurdity test, the conversion test, and the ratio test.  Both the prosecution and defence have provided helpful calculations.

13.  The results of the tests are as follows:

· Absurdity Test: 11 years and 5 months.

· Conversion Test: 10 years and 6 months.

· Ratio Test: Between 9 years 7 months (Prosecution) and 10 years (Defence).

14.  I find that the absurdity test yields a result that is disproportionately high, while the ratio test skews low.  The conversion test, which translates the quantity of all drugs into an equivalent quantity of the most serious drug present (here, Ice), provides the most realistic and fair measure.  I therefore adopt the conversion test result of 10 years and 6 months (126 months) as the appropriate starting point for Charge 1.

DEFENDANT’S ROLE AND CULPABILITY (STEPS 2 & 3)

15.  The Defendant claims he was a mere courier.  While I accept he was not the mastermind, the circumstances suggest a role beyond a simple courier.  He was in sole control of a significant and valuable mixed consignment of drugs, packaged for distribution.  His admission that he was to rearrange the bags indicates a degree of involvement in the handling process.  In line with Herry Jane Yusuph, I find his culpability is properly reflected at the upper end of the “courier/storekeeper” band.  However, no upward adjustment from the starting point on the basis of role is warranted.

AGGRAVATING AND MITIGATING FACTORS (STEPS 4 & 5)

16.  Aggravation: The multiplicity of drug types – Ice, heroin, cocaine, and ketamine – is a significant aggravating factor.  It enables the trafficker to cater to a wider market and increases the potential harm to society. Following authorities such as HKSAR v Wan Lau Mei (CACC 389/2013), I enhance the sentence by 6 months for this feature.

17.  Mitigation: The Defendant pleaded guilty at the earliest opportunity.  He is entitled to and will receive the full one-third discount for his timely plea.  I have considered the other mitigating factors raised by Mr. Yuen, including the Defendant’s limited role, his cooperation, his personal circumstances, and his drug addiction.  While these are noted, in a case of this seriousness, they afford no further material discount beyond that for the plea.  His claim of partial personal consumption is insignificant as far as the quantity is concerned and is in any event not supported by the evidence in a way that would warrant a specific deduction.

SENTENCE ON CHARGE 1

18.  Applying the steps above:

· Starting Point (Conversion Test): 10 years 6 months (126 months)

· Aggravation (Multiplicity): + 6 months

· Subtotal: 11 years (132 months)

· Discount for Guilty Plea (1/3): - 44 months

· Final Sentence: 88 months (7 years 4 months)

SENTENCE ON CHARGE 2

19.  For failing to provide specimens, the Defendant’s refusal obstructed the investigation into his driving fitness at the time of offence especially when he had admitted to have consumed drugs shortly before he was stopped by the police whilst driving. A short, sharp custodial sentence is appropriate.  Considering all circumstances, I shall adopt 1.5 months as a starting point, which after his guilty plea, a sentence of 1 month’s imprisonment is imposed.

TOTALITY (STEP 6)

20.  Standing back to consider the overall justice of the case, of the two offences, the principal crime is the serious drug trafficking offence and taking into account the already lengthy term for Charge 1, the sentence for Charge 2 should run concurrently with the term for Charge 1.

ORDER

21.  I therefore sentence the Defendant as follows:

· Charge 1 (Trafficking in Dangerous Drugs): 7 years and 4 months’ imprisonment.

· Charge 2 (Failure to Provide Specimens): 1 month’s imprisonment.

22.  The sentences are to run concurrently, making the total sentence 7 years and 4 months’ imprisonment.

BREACH OF THE SUSPENDED SENTENCE

23.  Again, in view of the lengthy sentence the Defendant is going to serve, I shall only activate 6 months of the sentence in relation to KCCC 268/2023. The sentence is to run consecutively to the total sentences of 7 years and 4 months’ imprisonment imposed for the two charges. I consider the total and overall sentence of 7 years and 10 months is only just, fair and balanced.

DISQUALIFICATION FROM DRIVING

24.  For charge 2, I also order the Defendant be disqualified from driving until he has attended and completed a driving improvement course at his own cost under s.39S(5)(a) of the Road Traffic Ordinance (Cap 374).