HKSAR v. TANG WING CHUNG

HCCC 302/2024

[2025] HKCFI 1004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 302 OF 2024

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT: The defendant pleaded guilty to one count of trafficking in dangerous drugs in the Eastern Magistrates’ Court on 19 September 2024. He was committed to the Court of First Instance for sentence. The defendant had confirmed his plea and admission of the Summary of Facts before me.

There were two types of drugs particularised in the charge. The respective narcotic contents of which were 11.9 grammes of a crystalline solid containing 11 grammes of methamphetamine hydrochloride, commonly known as Ice, and 1.53 grammes of a solid containing 1.34 grammes of cocaine.

The Facts

In the morning on 15 February 2023, the police attended Room 504, 5th Floor, Lucky House, 18-24 Jordan Road, Yau Ma Tei, Kowloon (“the flat”) for investigation. The police found on top of a wooden cabinet next to the bed:

(a) six plastic bags containing a total of 11.9 grammes of crystalline solid containing 11 grammes of Ice;

(b) one plastic bag containing 0.62 grammes of a solid containing 0.54 grammes of cocaine;

(c) one plastic bag containing a drug listed in Part I poison;

(d) one transparent plastic box containing two spoons and 0.91 grammes of a solid containing 0.80 grammes of cocaine;

(e) one digital scale;

(f) three ice pots (inhaling devices);

(g) two boxes of baking soda;

(h) one black plastic bag containing three packets of transparent resealable plastic bags.

Inside the wardrobe, the following items were found: 104-HK$1,000 banknotes, totalling $104,000; a handbag containing HK$200 cash; and two keys. The defendant was arrested but remained silent under caution.

In a subsequent video-recorded interview with the police, the defendant claimed that:

(a) The eight packets of powder in plastic bags belonged to him. He purchased the dangerous drugs from a foreign male at King George V Memorial Park for $4,000. He admitted they were Ice.

(b) He had lived in the flat for about four to five months at a daily rent of $300 with his girlfriend.

(c) He admitted that powder contained in the box was “Coke”.

(d) He said the digital scales were there to check if he had been cheated by the sellers.

(e) He had nothing to say about the spoons, the three packets of resealable plastic bags, and the baking soda seized.

(f) He stated that the $104,000 were money he gave his girlfriend.

(g) He claimed he was a transportation worker earning about $20,000 to $30,000 a month with a daily wage of about $2,000.

The estimated retail value for the Ice was $5,783, and for cocaine it was $1,207 for powder or $1,573 in crack form.

In pleading guilty, however, the defendant admitted and accepted that he knowingly possessed the dangerous drugs particularised in the charge for the purpose of unlawful trafficking.

Antecedent and Mitigation

The defendant was 45 years old at the time of arrest. He is now 46 years old. He finished education up to Form 3. He worked as a transportation worker earning a salary of around $20,000 to $30,000 per month. He has 13 previous criminal convictions, five were drugs related, of which two were trafficking in dangerous drugs. He was last sentenced on 12 July 2024 for trafficking in dangerous drugs for 37 months’ imprisonment.

In mitigation, the defendant had pleaded guilty at the first earliest opportunity. Mr Pun said that the defendant is a long-term drug addict, and that a significant proportion of the drugs was intended for self-consumption.

Consideration of sentence

I will now determine the sentence following six-step sentencing approach set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 and HKSAR v Lee Ming Ho [2024] HKCA 150.

Step 1 is to identify the relevant guideline band or bracket applicable to the quantity of narcotics concerned. The drugs involved in the charge were 11 grammes of Ice and 1.34 grammes of cocaine.

The sentencing tariffs for trafficking in cocaine are provided for in R v Lau Tak Ming [1990] 2 HKLRD 370. Up to 10 grammes of cocaine falls within the band of 2 to 5 years’ imprisonment. The sentencing tariff for trafficking in Ice are provided for in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. 10 to 70 grammes of Ice falls within the band of 7 to 11 years’ imprisonment.

I have reminded myself the sentencing principle for trafficking in cocktail drugs. The court may either take an individual approach or a combined approach in sentencing for trafficking in a cocktail or combination of drugs. There are three means of cross-checking the appropriateness of the overall starting points for trafficking in different types of dangerous drugs: see HKSAR v Yip Wai Yin [2004] 3 HKC 367, HKSAR v Chan Yuk Leong (CACC 318/2023, 8 April 2014) at paragraphs 12 to 19, HKSAR v Cheung Wai Man [2019] 1 HKLRD 817 at paragraph 39.

The results of the different approaches and tests were as follows:

(a) A total starting point of 9 years and 4 months’ imprisonment, that is the individual approach, ie, adding 7 years for 11 grammes of Ice and 2 years 4 months for 1.34 grammes of cocaine;

(b) Absurdity test: converting all drugs into Ice (that is 12.34 grammes in total), the starting point would be 7 years and 1 month’s imprisonment;

(c) Conversion test: Ice is the more potent drug, but the lowest sentencing band starts from 3 years, therefore it is not possible to convert the relative amounts of cocaine into Ice;

(d) Ratio test: in the total of 12.34 grammes of drugs, Ice took up 89.14 per cent and cocaine took up 10.86 per cent. According to this ratio, the starting point will be 6 years 11 months’ imprisonment.

Having applied the three tests, I consider the notional starting point of 7 years’ imprisonment would be appropriate for the present case.

Now for steps 2 and 3, I consider the defendant’s role and culpability. There is no evidence before me to suggest the defendant had any further role beyond the culpability of a storekeeper/courier. I therefore assess his culpability on that basis.

Step 4 is to consider whether there are any aggravating factors. There are two in this case.

First, the defendant was trafficking in more than one type of dangerous drug, thus catering for a wider market with enhanced profits. It is a factor recognised by the court as deserving of an enhanced sentence: see HKSAR v Yim Hung Lui, Ricky (Unrep., CACC 266/2011, 13 February 2012) at paragraph 11; HKSAR v Islam Azharul [2020] 1 HKLRD 644 at paragraph 15; HKSAR v Chan Yuk Leong (CACC 318/2013) at paragraphs 23 to 25.

Second, the defendant’s previous records in trafficking in dangerous drugs. This is the third time he has been convicted of trafficking. The defendant has a substantial criminal record going back to 1995. In 2003 he was sentenced to a probation order of 18 months’ imprisonment for trafficking in dangerous drugs and on 12 July 2024 he was sentenced to a term of 37 months’ imprisonment also for trafficking in dangerous drugs. I am informed that the defendant committed the present offence while on bail for the case of DCCC 447/2023. All this would suggest he is a repeated offender.

It was pointed out in HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186 that a previous similar record is a specific aggravating feature. At paragraph 70, the Court of Appeal held that the trafficker’s previous conviction of trafficking offence is “better understood as a separate factor which is capable of aggravating the sentence of an offender who has not learnt his lesson and repeated the offence, thus requiring a significant element of personal and public deterrence.” This is a matter within the discretion of the sentencing judge.

However, in determining an enhancement to his sentence by any aggravating factor, I should ensure the degree of enhancement should be reasonably proportionate to the basic sentence and the total ultimate sentence should not be excessive. I have considered the submissions made by Mr Pun who has said everything he could on behalf of the defendant. The notional starting point is enhanced by 6 months that is the starting point of 7 years and 6 months’ imprisonment.

As for mitigating factors, personal circumstances will count for little unless they are exceptional in trafficking cases. There is none in this case.

Mr Pun further submitted that a significant proportion that is 4 grammes of Ice and 0.52 grammes of cocaine were for the defendant’s own consumption. He submits the following matters in support of his of this claim:

(a) The defendant is a drug addict with three previous convictions of possession of dangerous drug, suggesting a drug habit.

(b) The drugs were discovered in the defendant’s flat with inhaling devices (Ice pots) found there.

(c)After the defendant had been remanded in Lai Chi Kok Reception Centre, his urine specimen collected a day later showed he was tested positive for both amphetamine and cocaine.

(d) He has a job and sufficient means to pay for the drugs.

It is also submitted by Mr Pun on behalf of the defendant that the defendant is a regular user of Ice and cocaine consuming 0.15 to 0.2 grammes of Ice each time and three times a day and 0.25 grammes of cocaine each time and four times a day. Hence, 4 grammes of Ice and 0.54 grammes of cocaine seized were for the defendant’s own consumption.

On this basis, Mr Pun invites the court to give a reduction of sentence to the extent that the sentence should be discounted for 10 to 25 per cent. He relies on Chow Chun Sang at paragraph 19.

On the other hand, the prosecution takes issue with the assertion of a significant proportion of drugs that is almost half of the drugs or more than a quarter of the drugs that is Ice and cocaine seized were for the defendant’s consumption. The prosecution does not accept such a significant proportion of drugs as claimed by the defendant in the mitigation. However, the prosecution does accept Ice pots were found in the premises.

Mr Pun draws my attention to the previous drug trafficking case in DCCC 447/2023 which occurred in October 2022. Having read the reasons for sentence of that case in DCCC 447/2023, it shows that what was asserted by the defendant in that case as to the frequency of consumption of drugs by him is different from what the defendant now claimed in this proceedings. Further, a large amount of cash was found inside the wardrobe of the flat, ie HK$104,000 in total.

The threshold test for self-consumption was whether “all or a significant proportion” of drugs was intended by the defendant for his own consumption: see HKSAR v Wong Yuet Hau [2002] 1 HKLRD 69, HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121. As to what is significant proportion in Wong Yuet Hau, it was said to be of such a proportion it may well make a difference to sentence.

The credibility of the claim must be based on proper and evidential basis: see HKSAR v Choi Chun Wo [2018] 5 HKLRD 717 at paragraph 37; see also Cheung Wai Man. Mere assertions by counsel from the Bar table, unless agreed or not in dispute or contention, will generally not suffice. The prosecution also has an important role to play in assisting the court in resolving such a claim. If the prosecution has information and material that addresses the claim one way or the other, they should ensure the court is appropriately informed of it. It is therefore important for a defendant in making a claim of self‑consumption to put before the court credible and reliable information and material in an acceptable form.

Now when a less than significant proportion of unquantifiable drugs is accepted as being the defendant’s own consumption then a sentencing court has a discretion to award a discount from the starting point taken for sentence to reflect this fact: Choi Chun Wo, paragraph 29.

I made known my preliminary views to the defence. Mr Pun confirmed that the defendant would not be giving evidence in the witness box to support the defendant’s claim for self‑consumption.

The defence invited this court to consider that a part of the drugs found in possession of the defendant was for his own use. In respect of the defendant’s claim of self‑consumption, whilst I accept that there is some basis to support the defendant’s claim that part of the drugs found in his possession may well be for his own consumption, I do not consider it was as high as suggested by him.

Further, the defendant admitted at the time he pleaded

guilty that the drugs were in his possession for trafficking. In mitigation, his position changed and it was submitted that a third of the drugs was for his own consumption, but no evidence was supported to substantiate this claim.

As submitted by Mr Pun, where the court is satisfied that only part of the drugs were for self‑consumption rather than a significant part, the court still has a discretion to decide whether the defendant should be given any reduction in sentence for that reason and the extent of it, according to the individual circumstances of each case: see HKSAR v Kong Tak Lung [2017] 6 HKC 448 at paragraphs 58 and 59.

I have been provided with the urine test report in respect of the defendant’s sample, collected on 17 February, two days after his arrest, which showed the defendant was tested positive for amphetamine and cocaine. It is also evident, from the defendant’s previous criminal record, he is a drug addict for some time.

In those circumstances, I am prepared to proceed on a basis that a small proportion of the drugs in the present case was for the defendant’s own consumption. I am prepared to exercise my discretion to give a discount of 4 months on sentence for that reason, being the defendant’s claimed self‑consumption of some of the drugs found in his possession.

He is also entitled to a one-third discount off the starting point because of the defendant’s guilty plea. This brings the sentence down to 60 months’ imprisonment, and then because of the claimed self‑consumption of some of the drugs found in his possession which I will exercise my discretion to give a discount of 4 months. This would accordingly bring the sentence of 60 months down to 56 months.

I am of the view that the sentence of 56 months’ imprisonment is appropriate and is not out of proportion to the defendant’s overall criminality.

Totality

Apart from the one-third discount for timely plea, counsel also submitted that in dealing with the defendant serving a sentence for another offence, this court should step back and take into account the totality principle.

The defendant is currently serving a total sentence of 45 months in respect of DCCC 447/2023 (for trafficking in dangerous drugs which was committed on 5 October 2022) and DCCC 1138/2023 (for burglary committed on 13 February 2023). Both were sentenced on 12 July 2024.

I should emphasise the two offences in the present proceedings were different acts of unlawful trafficking in DCCC 447/2023, and not part of a “single transaction”, as they were separated by over four months in time. I also noted that the defendant committed the offence in the present case whilst on bail in connection with an earlier trafficking case (DCCC 447/2023).

I now turn to consider whether the final sentence I impose will have an overbearing and crushing effect on the defendant.

I bear in mind the principles enunciated in HKSAR v Leung Ting Fung & another [2015] 1 HKC 290. The Court of Appeal said at paragraph 36 that the judge dealing with an offender who is serving a sentence of imprisonment for offences occurring around the time of other offences for which the judge must now sentence the offender must step back and take a global view of the total sentence in light of the whole of the criminal conduct. The court must have regard to the totality of all the terms of imprisonment to which the offender would become subject. The matter should be approached as if the cases were being heard together.

Having looked at the totality of all the terms of imprisonment and taking into account the totality principle, I order 4 months of the 56 months be served concurrently to the sentence imposed in the District Court with the remaining 52 months of this offence to be served consecutively with the 45 months imposed by the District Court in DCCC 447/2023 and 1138/2023.