HKSAR v. TANG HO LUN

DCCC 186/2019

[2019] HKDC 1364

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 186 OF 2019

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REASONS FOR SENTENCE

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1.  The defendant is convicted of two charges of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 on his own plea and agreement to the Summary of Facts.

The Facts

2.  In the evening of 22 November 2018, police officers in uniform saw the defendant walking out from a hotel towards a private car and the defendant was intercepted as he was unlocking the car. Upon body search, the officers found inside his underwear a white tissue paper containing 1 transparent resealable plastic bag containing smaller bags of suspected dangerous drugs (“E1”).

3.  The officers also searched the car and found one cigarette box inside the gear box compartment next to the driver’s seat.  The said cigarette box contained a white tissue wrapped around 1 transparent resealable plastic bag containing smaller bags of suspected dangerous drugs (“E2”).

4.  Under arrest and caution at the scene, the defendant said the cocaine was for his own use. 

5.  The defendant was also found to be in the possession of HK$34,179.40.

6.  The Government Chemist confirmed that:-

(a) E1 is 11 plastic bags containing a total of 1.99 grammes of a solid containing 1.64 grammes of cocaine;

(b) E2 is 4 plastic bags containing a total of 3.76 grammes of a solid containing 3.25 grammes of cocaine.

Altogether, there are 5.75 grammes of a solid containing 4.89 grammes of cocaine.

7.  The estimated market value of the drugs is HK$8,268 and the car is registered under the defendant’s sole name.

8.  In the video-recorded interview, the defendant said under caution that:-

(a) prior to his arrest, he just went to the hotel for using the toilet;

(b) the drugs found on him and in the car is cocaine, he purchased it from an unknown foreigner earlier in Tsim Sha Tsui;

(c) each small packet of cocaine cost about $300;

(d) the cocaine was separated into small packets for ease of his consumption;

(e) he would consume one small packet of cocaine every day by smoking it in cigarettes;

(f) he kept E1 in his underwear to avoid it being found by police during stop and search;

(g) E2 was kept in the car for ease of consumption;

(h) the cash found on him was a loan from his family and his winnings from playing mah-jong. He was in possession of this money because he was about to deposit the cash for paying rent.

Criminal record

8. The defendant has 2 previous convictions, none of which is similar although there is one conviction relating to dangerous drugs.

Mitigation

9.  The defendant is aged 36.  He is married with a son and live with his wife and son in a rented premises in Chai Wan. 

10.  He has received education up to Form 5 level. 

11.  At the time of the offence, he is said to be an electrician/plumber and a part-time decoration worker earning about $25,000 per month.  In support, the defence counsel submitted the defendant’s wage slips for August to October 2018.

12.  It is submitted by defence counsel that the defendant is a filial son and a responsible husband and father.  It is also said that the money seized on him on the day of arrest was actually his salary, loan from family intended for a deposit into bank for payment of rental and son’s school fees, household fees for his mother-in-law and daily expenses.  The defendant borrowed the money as he was in need to pay for construction materials for small projects which he has undertaken and he will repay his family when he was paid when the project completed.

13.  Defence counsel said in the year 2017, the wife of the defendant sought for a divorce and later they reconciled and the wife had a miscarriage. 

14.  It was said that both of these incidents came as blows to the defendant and as the defendant was depressed, he was lured by undesirable peers to take up the drugs.

15.  It was also contended by defence counsel that the defendant said as he had a son at home he would not take the drugs back to his residence and he would consume it outside the house and would sometimes share it with his friends at a friend’s place. 

16.  Initially it is submitted that the drugs seized from the car was intended for the defendant’s own consumption and that for the drugs seized on him the defendant had then intended to share it with his friends.

17.  The urine test at the reception centre confirms that the defendant did take cocaine.  It is also initially submitted by defence counsel that two-thirds of the drugs seized was for the defendant’s own consumption.  It is also said that the value of the drugs seized was only $8,268 involving 4.89 grammes of cocaine. 

18.  The defence submitted that the defendant did not have a similar conviction in the past and that he is now deeply remorseful as to what he has done which has caused a lot of concern to members of his family. 

19.  It is said that the defendant now has learned a lesson and he would like to be a good father, husband and son when he leaves prison and that he vows not to reoffend in future.

20.  Mitigation letters from the defendant’s wife, mother and elder sister were all handed to this court and they asked this court to give the defendant a chance to turn a new leaf. 

21.  After the court indicated to the defence counsel that the court was not willing to accept the contention that two-thirds of the drugs seized was for the defendant’s own consumption and a Newton hearing would have to be conducted to clarify the issue, defence counsel withdrew the submission that a significant portion of the drugs was for the defendant’s own consumption.

Discussion

22.  For these offences, on conviction upon indictment, the maximum sentence is a fine of $5 million and life imprisonment. 

23.  The weight of the cocaine seized in this case totalled 4.89 grammes. 

24.  For trafficking in cocaine, following the authority of Pedro Nel Rojas [1994] 2 HKCLR 69 and adopting the guideline in the case of R v Lau Tak Ming [1990] 2 HKLR 370, trafficking up to 10 grammes of cocaine, the appropriate starting point is within the range of 2 to 5 years’ imprisonment. 

25.  As said earlier, this court did not accept the contention by defence counsel that a significant part of the drugs was for defendant’s own consumption although this court would accept that at the material times insignificant portion of the drugs was for the defendant’s own consumption.

26.  The income of the defendant was said to be around $25,000 per month and he was said to be an electrician/plumber whilst the wage slips for the defendant in the three months prior to his arrest suggested or stated that the defendant was in fact a mason.  These wage slips were chopped with company name but were not signed, they looked suspicious.

27.  This court noted that at the time of arrest the defendant already had in his car E2 which contains 4 bags containing 3.76 grammes of a solid containing 3.25 grammes of cocaine and yet he carried E1 which contained 11 plastic bags totalling 1.99 grammes of solid containing 1.64 grammes of cocaine around. 

28.  Further, the defendant said under caution and in the video-recorded interview that he consumed the cocaine by putting it in cigarette and he smoke one small packet a day.  Each packet in E1 contained about 0.15 grammes of cocaine.  It means therefore that the drugs seized in this case would be sufficient for the defendant’s consumption over 30 days and that Exhibit E1 alone would be good enough for 11 days’ consumption.

29.  Moreover, it is noted by this court that the money carried on the defendant’s body at the time of arrest is in the denomination of eight $1,000 notes, forty-nine $500 notes, fifteen $100 notes and two $50 notes and 39 coins of different denominations.  Why was the defendant carrying this money around?  It was only the 22nd day of the month and he should not be paid yet for the month of November because if the wage slips were genuine, he would be paid only once in a month after a month’s work.  The defendant said he was earning $25,000 a month yet at the time of arrest he was driving a Mercedes Benz, he had $8,268 value of drugs, he had cash of $34,179.4 on him.  Would he be able to afford such a way of life if he was earning only $25,000 a month, when he had to rent his own accommodation, and, as he said, he had to pay for his son’s education, household expenses including some money for his mother-in-law?

30.  Trafficking in dangerous drugs is a very serious offence and it is established that personal background is seldom a valid mitigating factor.  This court has also considered all mitigation letters advanced but would point out that committing the offence in order to improve the finance of the family is not a valid mitigating ground.

31.  Before sentencing, this court has also considered fully all that was said on behalf of the defendant but this court finds the most valid mitigating factor is that of his timely plea of which he is entitled to a full one-third sentencing discount.

Charge 1

32.  Adopting the tariff, the sentencing starting point for trafficking in 1.64 grammes of cocaine is 30 months and 6 days’ imprisonment.  In considering some of these drugs are for the defendant’s own consumption, the same is reduced to 24 months’ imprisonment.  And further taking into account of the one-third sentencing discount, the same is further reduced to 16 months’ imprisonment for this charge.

Charge 2

33.  The sentencing starting point for trafficking in 3.25 grammes of cocaine is 36 months and 9 days’ imprisonment.  And after a one-third sentencing discount, the same is reduced to 24 months’ and 6 days’ imprisonment for this charge.

34.  Considering the totality principle and the overall criminality of the defendant in this case, and noting that had the defendant been charged with one single trafficking charge of 4.89 grammes of cocaine, the sentencing starting point should be 42 months and 15 days’ imprisonment.  Taking into consideration that part of the drugs are for the defendant’s own consumption, the starting point should become 39 months’ imprisonment, and after a one-third sentencing discount the same should be 26 months’ imprisonment.

35.  This court therefore orders that 10 months’ imprisonment of the sentence in Charge 2 shall run consecutive to the sentence in Charge 1 and 16 months’ imprisonment imposed for Charge 2 shall run concurrent to the sentence in Charge 1.  The defendant is therefore sentenced to a total of 26 months’ imprisonment for this case.