HKSAR v. CHAU TIM LEONG

DCCC 150/2018

[2018] HKDC 1187

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 150 OF 2018

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REASONS FOR SENTENCE

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1.  Defendant Chau Tim Leong is being charged with 3 charges of Trafficking in a dangerous drug (Charges 1, 2 and 4), all contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, and one charge of Claiming to be a member of a triad society, contrary to section 20(2) of the Societies Ordinance, Cap 151.

2.  Mr Chau pleaded guilty to Charges 1,2 and 4 before me.  The prosecution asked that Charge 3 be left on court file not to be proceeded with without the leave of this court or the Court of Appeal.  I so ordered.

3.  Particulars of Charge 1 are that Mr Chau, on 25 August 2017, at the taxi station near Exit F MTR Tuen Mun Station, West Rail Line, Tuen Mun, New Territories, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 0.85 gramme of a solid containing 0.75 gramme of cocaine.

4.  Particulars of Charge 2 are that Mr Chau, on 12 September 2017, in a taxi near the same Exit F, unlawfully trafficked in a dangerous drug, namely 0.89 gramme of a solid containing 0.79 gramme of cocaine.

5.  Particulars of Charge 4 are that Mr Chau, on 4 November 2017, outside No 296D Nai Wai, Tuen Mun, New Territories, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 0.86 gramme of a solid containing 0.78 gramme of cocaine.

Admitted facts

6.  The facts admitted by Mr Chau may be summarized as follows.

Charge 1

7.  PW1 was an undercover police officer.  Through a number of intermediaries, he finally got in touch on 25 August 2017 with Mr Chau who arranged to meet PW1 later that day in order to supply a dangerous drug to PW1.

8.  Shortly after 8:47 pm the same day, at the taxi station near MTR Tuen Mun Station, Mr Chau gave PW1 a tissue paper ball in exchange for $2,500.  The tissue paper ball contained 5 plastic bags containing a total of 0.85 gramme of a solid containing 0.75 gramme of cocaine the estimated street value of which was $757.35.

Charge 2

9.  On 12 September 2017, PW1 had a series of phone calls with Mr Chau.  In them, Mr Chau suggested that PW1 could help him distribute coke to which PW1 agreed.  They then arranged for a transaction to take place.

10.  At 8:45 pm the same day, in a taxi near MTR Tuen Mun Station, Mr Chau gave PW1 a tissue paper ball in exchange for $2,000.  The tissue paper ball contained 5 plastic bags containing a total of 0.89 gramme of a solid containing 0.79 gramme of cocaine the estimated street value of which was $818.80.

Charge 4

11.  On 4 November 2017, PW1 had a series of phone calls with Mr Chau.  In them, Mr Chau asked PW1 if he wanted to get some goods to which PW1 agreed so they arranged for a transaction to take place whereby Mr Chau would sell 5 drops for $1,750.

12.  At about 9:36 pm the same day, at outside No 296D of Nai Wai, when Mr Chau was about to give PW1 an item wrapped in $100 notes (“the Item”), a detective nearby revealed his police identity.  Mr Chau then threw the Item into the G/F garden of No 296D.  PW1 and the detective subdued Mr Chau.

13.  The police retrieved the Item and opened the wrapping to find 2 $100 notes containing tissue which in turn contained one plastic bag containing 0.86 gramme of a solid containing 0.78 gramme of cocaine the estimated street value of which was $790.34.

14.  Mr Chau was arrested.

Criminal record

15.  The agreed criminal record shows Mr Chau has one previous conviction of robbery in 2013 for which he was sentenced to rehabilitation centre.

Antecedents

16.  The agreed antecedents statement shows Mr Chau to be aged 21 (20 at the time of the offences); that he studied up to F1; that he is single and lives in Tuen Mun.  He has one younger brother and younger sister.

Mitigation

17.  Mr Victor Ho of counsel mitigated on behalf of Mr Chau.

18.  The following is a summary of the mitigation submissions.

19.  The strongest mitigation is the pleas of guilty to the 3 charges indicating remorse.

20.  Mr Ho declares that he is not relying on entrapment as a mitigating factor.

21.  Mr Ho reminds me of the tariff sentence of 2 to 5 years for trafficking in up to 10 grammes of cocaine.

22.  Mr Ho urges me to consider the totality principle when sentencing for the 3 offences which took place on 3 different dates.

23.  Mr Chau has been a free-lance stage operator for 2½ years and worked in irregular hours on casual basis.  He has been cohabiting with his girlfriend for some time in Tuen Mun.

24.  Mr Chau’s father is bankrupt and suffers from depression.

25.  Mr Chau is not a drug addict and committed the present offences because of his severe financial difficulties.

26.  Mr Ho handed up a mitigation letter (without English translation) written by Mr Chau himself which spoke of his remorse and explained why he committed the offences: he wanted to earn quick money in order to support his family and to get married with his girlfriend sooner.

27.  Mr Ho submits that Mr Chau will not re-offend and will find another job upon release and to save up money to get married.

Sentence

28.  I have considered the mitigation submissions made by Mr Victor Ho.

29.  I have considered the principles stated in the two Chinese judgments handed up by the prosecution, namely, HKSAR v Nurofi’ah, CACC 260/2011, Judgment dated 20 December 2011, and Judgment dated 27 July 2012.

30.  Trafficking in a dangerous drug is a serious offence for which deterrent sentence is called for.

31.  The tariff sentences for trafficking in cocaine are to be aligned with those for trafficking in heroin for weights of pure narcotic up to 600 grammes: Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69.

32.  The tariff sentences for trafficking in heroin are set out in the case of R v Lau Tak Ming & Ors [1990] 2 HKLR 370.  For trafficking in up to 10 grammes of the drug, the sentence should be between 2 and 5 years’ imprisonment.

33.  In this case, there are 3 instances of trafficking all on different dates and in different places though I noted that the offence places for Charges 1 and 2 are in close proximity to one another.

34.  Subject only to totality, the 3 charges should attract consecutive sentences.

35.  Noting the small quantities involved, I take the starting points of 21 months for Charge 1, 24 months for Charge 2, and 27 months for Charge 4, so as to reflect the aggravating factor of multiple offences in respect of Charges 2 and 4.  Mr Chau pleaded guilty and so is entitled to a 1/3 discount in sentence.  There are no other mitigating factors which would justify any further reduction.

[Mr Chau, please stand]

36.  For Charge 1, the sentence is 14 months’ imprisonment.  For Charge 2, the sentence is 16 months’ imprisonment.  For Charge 4, the sentence is 18 months.

37.  Applying totality, I order 4 months of the sentence for Charge 2, and 6 months of the sentence for Charge 4 to separately run consecutively to the sentence for Charge 1.  The total sentence is therefore 24 months’ imprisonment.