HKSAR v. TSANG TSZ HEI AND OTHERS

DCCC 69/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 69 OF 2015

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Reasons for Sentence

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1.  During an anti-narcotics operation at about 11 pm on 4 November, police officers stopped a vehicle driven by Tsang Tsz-hei (D1) with Ng Chak-ying (D2) sitting on the front passenger seat and Chu Pak-cheung (D3) sitting in the rear.

2.  The police found a quantity of ketamine from inside the vehicle.  D1 is charged with “Unlawful Trafficking” of the same (Charge 1).  For the concerted effort to destroy the ketamine, both D1 and 2 are charged with one count of “Perverting the Course of Public Justice” (Charge 2).  The police found a quantity of cocaine on D3, for which he is charged with trafficking (Charge 3).

3.  The defendants were convicted upon their pleas and admission of facts.

Charges 1 and 2

4.  After the vehicle was stopped, the Police Officers saw D1 fiddling with some plastic bags.  He then passed them to D2, instructing her to destroy it.  D2 unfolded the packet and tore one of the four resealable plastic bags open, scattering its contents on the carpet of the vehicle.  It was upon being ordered by the Police Officers that she stopped, and threw the other three plastic bags onto the floor. 

5.  Of the four bags seized, two contained 9.57 and 9.66 grammes of ketamine respectively, the other two bags contained 1.33 and 0.75 grammes of the same dangerous drugs.  In addition, 4.7 grammes of ketamine were seized from the vehicle (presumably scooped up from its carpeted floor).  In all, it added up to 25.91 grammes of ketamine.  Its street value is estimated to be $4,193.

6.  Upon arrest and caution, D1 admitted that the ketamine was his and for his own consumption.

Facts of Charge 3

7.  D3 attempted to escape but was intercepted by the Police after a short pursuit.  The Police Officers found in his trousers pocket 40 packets of cocaine.  Their total weight was 9.76 grammes of a solid containing 8.43 grammes of cocaine.  Its street value was $9,233.  Under caution, D3 stated:

“Ah sir, I got nothing to do so I brought them over, thinking of selling them to others just to earn a little money to spend.”

Sentencing Considerations

8.  The offence of trafficking dangerous drugs are, sadly, prevalent in Hong Kong.  For this reason, the courts in Hong Kong have accumulated a long and well-established line of authorities from which the undersigned has little room to depart.  The norm is a term of imprisonment and the length of the imprisonment is to be proportionate to the quantity of the dangerous drugs found. 

9.  For trafficking in ketamine, the quantity of the present case (ie 25.91 grammes) falls within the band of 10 to 50 grammes and warrants a term of imprisonment of 4 to 6 years.[1] I see no reason in this case to depart from it.  I will therefore adopt a starting point of 4 years and 9 months, ie 57 months.

10.  In respect of the “Trafficking in Cocaine” charge, the quantity in this case (8.43 grammes) falls within the “up to 10 grammes” band and warrants 3 to 5 years’ imprisonment.[2] I will therefore adopt 4 years and 6 months, ie 54 months, as a starting point.

Discounts for Self-Consumption

11.  Both defendants contended that part of the drugs were for self-consumption and therefore should be entitled to a reduction of the starting point.

12.  It is established law that if the court accepts a substantial part of the drugs was intended for self-consumption, although the accused has pleaded guilty to trafficking for the entire quantity stated in the charge, the court should adjust the starting point in recognition of the same.  In such a case, the judge has to look with the greatest care at the circumstances in order to decide whether or not to accept such contention.  

13.  In the case of Wong Suet Hau [2002] 1 HKLRD 69, the Court of Appeal enlisted the factors which the sentencing judge had to look at in order to make a determination:

(1) the quantity and value of the drugs;

(2) the general circumstances, including how the drugs were wrapped and how many packets;

(3) where the drugs had been discovered, whether at a residential address owned or rented in the trafficker’s name or whether they were being carried in a public place;

(4) the presence of paraphernalia associated with drugs, including, on the one hand, items used for packaging, weighing and diluting drugs and, on the other hand, items used for consumption;

(5) whether the defendant was an addict or habitual user;

(6) the explanation given by the defendant following arrest;

(7) the defendant’s general means and his ability to pay for his drugs otherwise than by trafficking them; and

(8) the defendant’s criminal record in relation to previous drug offences[3].

14.  If the court is thus satisfied that part of the drugs were for self-consumption, the ensuing discount shall fall between 10 to 25 per cent of the basic starting point, having regard to the total quantities involved, the proportion intended for self-use, the nature of the dangerous drug, whether the trafficking was for a financial gain, whether the trafficking was organised and premeditated, and the background and criminal record of the defendant[4].

The case of D1

15.  As contended by D1’s defence counsel, part of the ketamine found in D1’s car was for self-consumption.  The drugs were kept in four plastic bags of varying quantity although I suspect that the one with the least quantity was the one torn open by D2, and part of its content had been scattered inside the car.  Upon arrest for Trafficking and under caution, D1 admitted possession for self-consumption.

16.  The street value of the drugs was $4,193.  D1 had a history of drug-related convictions but none for trafficking.  According to the defence counsel and the background report, D1 had been working in a car-washing company with a monthly salary of $15,000.

17.  The prosecution also conceded that there was some evidence to suggest that D1 had the need and the means to consume dangerous drugs.   

18.  Having considered the matter as a whole, I found that there is sufficient evidence to suggest part of the dangerous drugs found on D1 was for self-consumption.  On this basis, I will reduce the starting point by about 20 per cent, round it down to the completed month and adopt 45 months as the starting point in Charge 1.

The Case of D3

19.  D3 had 40 packets of cocaine in his pocket. He tried to escape from the police.  Upon arrest and caution, he made a full admission to the effect that with a view to profit, he had the drugs for resale.  He has a previous conviction for trafficking in 2009 for which he was sentenced to 6 years.  His counsel told this court that D3 made $8,000 per month from a part-time job.  He also described D3’s drug addiction habit, none of which was supported by any admissible evidence. Having considered the matter as a whole, I did not find any evidence to substantiate the claim that the 40 packets of the cocaine found on D3 were in part for self‑consumption.  I would therefore adopt the usual starting point of 50 months for Charge 3.

Charge 2: Perverting the Course of Public Justice

20.  There is no sentencing tariff for this kind of offence as circumstances of its commission and thus its criminality vary from case to case.  In the present case, after the police appeared, D1 gave D2 the packet containing dangerous drugs and instructed her to destroy it.  D2 promptly took over the packet, tore open one of the plastic bags and scattered its content.   

21.  Although I accept that what both defendants did was out of shock, momentary panic and desperation, this nonetheless was a concerted effort to impede police investigation. In my view, this is a serious offence, and a short term of imprisonment will be appropriate.  I will adopt a starting point of 6 months.

Mitigation

22.  In addition to the submissions made on their behalf, I also take into account of the information contained in background reports for D1 and D3, and, in the case of D2, a Probation, a DATC and a Training Centre Reports.  

23.  D1’s background has been set out in the report, and it is largely consistent with what his lawyer told this court.  I did not find anything in the report which justifies additional leniency in sentencing. He is an adult with previous convictions.  He could claim credit on neither count.

24.  D2 has a clear record.  She is a Hong Kong-born daughter of a cross-boundary family.  The family survived on public assistance.  Her mother had been a victim of domestic violence and had been ineffective in taking care of her.  She was an underachiever at school although she did manage to behave herself initially.  She went astray when she began to associate with classmates with triad background.  Although she is declared to be clear of drug dependency by the medical officers of the Correctional Services, I am also informed that she had dabbled in ketamine since she was in Form 1.  After she started cohabiting with D1 in 2013, under the influence of the latter, she started to take ketamine on a regular basis and even started to take cocaine in February 2014.  She claimed that she stopped taking dangerous drugs when she found herself pregnant with D1’s baby in August 2014.  She is considered suitable for detention in a Training Centre.  

25.  The Probation Officer, having reviewed her background and circumstances, decided to give her a chance and recommended a 24-month probation supervision with conditions, amongst others, a residential drug treatment programme of 12 months  

26.  The defendant is a 20-year-old mother with a very young daughter.  Obviously, the baby needs the care of her mother.  Although I have reservation, given her background and the association with D1, as to whether she can resist the temptation of drugs; on the other hand, I have great concern for the welfare of the young girl who, through no fault of her own, came into this world without the care of a mother.

27.  I am encouraged by the Probation Officer’s recommendation and I am willing to give it a try.

28.  D3 decided not to co-operate with the probation officer.  He is an adult of 24 years and had a similar conviction, for which he was sent to prison for 6 years.  Even if I were so inclined, there is nothing for me to base on to exercise additional clemency in sentencing.

Sentencing Orders

29.  The only valid mitigation reason for both D1 and 3 are their pleas of guilty.  In the case of D1, for Charge 1, he is given a discount of one-third and his sentence is reduced from 45 months to 30 months imprisonment.  In respect of Charge 2, he is sentenced to 4 months.  To take into account of the whole circumstances of the case, I would order 2 months to run consecutive to the sentence order for Charge 1, making a total of 32 months.

30.  In the case of D2, I am willing to give her a chance based on the confidence the Probation Officer has on her.  I hope that such confidence is not misplaced.  She is sentenced to a 24-month probation subject to the following conditions:

(1) She shall be admitted to St Stephen’s Society residential drug treatment and rehabilitation centre for a duration of 12 months commencing on 9 June 2015.

(2) She shall study, work and reside as directed by her probation officer.

(3) She shall observe home curfew from 10 pm to 6 am unless with prior approval by the probation officer.

(4) She shall submit urine samples for random urine test as and when required.

(5) She shall participate in any groups or programmes beneficial to her rehabilitation as arranged by her supervising probation officer.

31.  D3’s sentence for Charge 3 is hereby reduced from 54 months to 36 months to reflect his guilty plea.