HKSAR v TSE HO YIN

DCCC 517/2023

[2024] HKDC 249

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 517 OF 2023

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REASONS FOR SENTENCE

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1.  Mr Tse pleaded guilty before me to two charges on a Charge Sheet, namely one charge of Trafficking in dangerous drugs (Charge 1), contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134; and one charge of Possession of an identity card relating to another person (Charge 2), contrary to section 7A(1A)  of the Registration of Persons Ordinance, Cap 177.

2.  Particulars of Charge 1 are that Mr Tse, on 8 December 2022, on a private car bearing registration mark YE1332, opposite to No 171 Sai Yee Street, Mong Kok, Kowloon, in Hong Kong, unlawfully trafficked in dangerous drugs, namely 49.62 grammes of a solid containing 43.03 grammes of ketamine and 17.9 grammes of a solid containing 16.9 grammes of cocaine.

3.  Particulars of Charge 2 are that Mr Tse, on the same day, at the same place, in Hong Kong, without lawful authority or reasonable excuse, had in his possession one Hong Kong Identity Card which related to another person, namely Chung Fung Mei, Wendy.

Facts admitted by Mr Tse

4.  On 8 December 2022, at about 12:45 am, police intercepted a private car at a roadblock in Sai Yee Street, Mong Kok.  Mr Tse the driver was the only person on board.  He acted furtively and provided incoherent answers when questioned by the police.

5.  Police searched the car and seized the following from the storage compartment between the driver’s seat and the front passenger seat:-

(a)  One re-sealable plastic bag containing 116 re-sealable plastic bags containing a total of 17.9 grammes of a solid containing 16.9 grammes of cocaine; and

(b)  A blue bag containing 4 re-sealable plastic bags A to D: A contained 20 re-sealable plastic bags containing a total of 12.6 grammes of a solid containing 10.9 grammes of ketamine; B contained 16 re-sealable plastic bags containing a total of 9.72 grammes of a solid containing 8.43 grammes of ketamine; C contained one re-sealable plastic bag containing 13.7 grammes of a solid containing 11.9 grammes of ketamine; and D contained one re-sealable plastic bag containing 13.6 grammes of a solid containing 11.8 grammes of ketamine.

6.  Police arrested Mr Tse for trafficking in a dangerous drug.

7.  Upon further search of the car, police found in the storage compartment under the display screen beside the driver’s seat a Hong Kong Identity Card in the name of a female Chung Fung Mei, Wendy.

8.  Police arrested Mr Tse for possession of an identity card relating to another person.  Under caution, Mr Tse claimed that the identity card was left there by a friend’s friend whom he was not able to contact.

9.  Upon body search, police found cash of $10,700.40 and two mobile phones on Mr Tse.

10.  The total street value of all the drugs seized was $43,668.32.

11.  A forensic scientist of the Government Laboratory examined the said identity card and was of the opinion that it was genuine.  According to police record, a “loss report” was made by the rightful holder of the identity card on 25 July 2022.

12.  Mr Tse now admits he possessed the seized drugs for the purpose of unlawful trafficking.

13.  Mr Tse also now admits he had in his possession the said identity card without lawful authority or reasonable excuse.

Criminal record

14.  Mr Tse has a previous clear record.

Antecedents

15.  Mr Tse is aged 32 (31 at the time of the offences), educated to Yi Jin Diploma level, was unemployed at the time of arrest.  Mr Tse is married.

Mitigation

16.  Mr Terry Wong of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Tse.  The following is a summary of the mitigation submissions.

17.  Mr Tse completed Yi Jin Diploma in 2011.  He got married in 2013 but the couple separated in 2016.

18.  Before Mr Tse lost his job as a cook in mid-2022 (the restaurant he worked for and which was owned and operated by his mother’s family closed down), he was earning $15,000 a month which could barely support his family consisting of himself and his two daughters (now aged 11 and 9).  Both when he was working and after he has lost his job, the two girls were taken care of by Mr Tse’s mother.  Mr Tse’s financial problem was aggravated by the debts of his separated wife because, although she no longer lived there, her creditors kept harassing the matrimonial home.  In order to avoid the sufferings of the two daughters, Mr Tse made the decision to earn quick money.

19.  When he was remanded in jail custody, he learned from the Bible on how to change his life.  He is deeply sorry for his wrongful behaviour and wants to apologize to everyone in society.  He wants to be a good citizen again.

20.  Mr Wong referred to HKSAR v Islam SM Majharul [2020] 3 HKLRD 146 and HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 for the steps to be followed in arriving at the proper sentence for a defendant who trafficked in more than one type of drug.

21.  On Charge 1, under the individual approach of sentencing, the arithmetic starting point is 66.21 months (cocaine)  plus 67.82 months (ketamine)  equals 134.03 months which is too severe.

22.  Under the combined approach of sentencing, cocaine being the more potent drug will be used as the base drug.

23.  The cross-checking tests will bear the following results:-

(a)  Absurdity test: 99.17 months for 59.93 grammes of cocaine;

(b)  Conversion test: 83.02 months for 35.58 grammes of cocaine; 76.68 months for 83.38 grammes of ketamine; and

(c)  Ratio test: cocaine ratio 16.9/59.93 x 99.17 months (resulting in 27.96 months)  plus ketamine ratio 43.03/59.93 x 73.43 months (resulting in 52.71 months)  = 81.38 months.

24.  Mr Wong asks the court to adopt 78 months as the starting point before considering the aggravating factor of presence of two types of drug which may call for an enhancement of 3 months thereto.  Mr Wong reminds the court to apply the 1/3 discount for timely plea.

25.  On Charge 2, Mr Wong submits there are no sentencing guidelines for the offence of possession of identity card relating to another, if the offender is a Hong Kong resident.

26.  However, Mr Wong, relying on HKSAR v Fan King Lam, CACC 220/2010, at paras 17-20, submits that the usual sentence after plea is 12 months’ imprisonment.  Despite that, Mr Wong submits that the usual sentence may be lowered depending on the circumstance: here, it is unlikely Mr Tse will use a female identity card to impersonate a female.  Mr Wong suggests a sentence after plea of 6 months’ imprisonment.

27.  Mr Wong reminds the court to apply the totality principle in order not to crush Mr Tse.  Mr Wong suggests that 3 months of the sentence on Charge 2 be made to run concurrently with that on Charge 1 resulting in a total sentence of 57 months’ imprisonment.

28.  Mr Wong submitted on behalf of Mr Tse two mitigation letters written in Chinese respectively by Mr Tse’s mother and elder daughter (with a composition about her father Mr Tse attached to her letter).  The contents are generally that Mr Tse has been serving in the Civil Aid Service since secondary school days and occasionally did voluntary work; that Mr Tse is a generous, kind-hearted, and patient person.  Both letter writers asked for leniency from the court so that Mr Tse may re-unite with his family earlier.

Sentence

29.  As a result of exchanges between the court and Mr Wong towards the end of the mitigation, I found the reason put forward by Mr Tse for committing the drug trafficking offence wholly unconvincing.  Even so, I will not increase Mr Tse’s sentence on this basis.

30.  Drug trafficking is a very serious offence with a heavy sentence awaiting those who get caught.  This fact is well-known to the community. Those who take the risk of committing this offence have in their calculation the profit to risk ratio.  They must have thought the risk was worth taking before embarking on the criminal activity.

31.  Mr Tse got caught so he must face the full consequences of the operation of law.

32.  In sentencing Mr Tse for the offence of trafficking in more than one type of dangerous drug, I bear in mind all that was held in Herry Jane Yusuph and Islam SM Majharul (both supra).

33.  To his credit, I shall regard Mr Tse as a mere courier of drugs.

34.  Mr Wong’s results of calculation under the 3 cross-checking tests came close to those worked out by myself independently.  The differences are not significant.

35.  On Charge 1, I will adopt the combined approach of sentencing.  I will adopt as the initial starting point a term of 78.5 months’ imprisonment.  For the presence of more than one type of serious drug, I will add 2.5 months to it to arrive at the final starting point of 81 months’ imprisonment.

36.  On Charge 2, having referred to the case of Fan King Lam (especially para 17 therein)  relied on by Mr Wong, I see no ground to depart from the usual sentence of 12 months’ imprisonment after a plea of guilty even where the offender is a Hong Kong resident.

37.  Mr Tse pleaded guilty in good time earning for himself the customary 1/3 discount in sentence on Charge 1.  There are no other mitigating factors of weight to justify another reduction in sentence.  For the record, I consider a previous clear record will not count for much in terms of mitigation in this type of case.

38.  In principle, since the two offences are completely separate and distinct, and one is not a concomitant offence to the other, their associated sentences ought to be served consecutively to each other.  However, by application of the totality principle, some degree of concurrency will be allowed.

(Mr Tse, please stand)

39.  For Charge 1, the sentence is 54 months’ imprisonment.

40.  For Charge 2, the sentence is 12 months’ imprisonment.

41.  I order that 6 months of the sentence on Charge 2 be served consecutively to the sentence on Charge 1, making the aggregate sentence one of 60 months’ or 5 years’ imprisonment.