DCCC244/2017 HKSAR v. TSE MAN FAI AND ANOTHER - LawHero
DCCC244/2017
區域法院（刑事）Deputy District Judge Amy Chan4/9/2017
DCCC244/2017
A A
B B
DCCC 244/2017
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO 244 OF 2017 E
F ------------------------- F
HKSAR
G G
v
H TSE MAN FAI (D1) H
LAM CHUN HEI (D2)
I I
--------------------------
J J
Before: Deputy District Judge Amy Chan
K K
Date: 5 September 2017
L Present: Mr Bernard Yuen, Counsel on Fiat, for HKSAR/Director of L
Public Prosecution
M M
Mr Lam Hoy Lee Laurie of Hastings & Co, assigned by the
N N
Director of Legal Aid, for the 1st defendant
O
Mr Chui Pak Ming Norman of Chui & Lau, assigned by the O
nd
Director of Legal Aid, for the 2 defendant
P P
Offence: [1] Trafficking in a dangerous drug (販運危險藥物) –D1
Q [2] Possession of a dangerous drug (管有危險藥物) – D2 Q
R R
-----------------------------------------
S REASONS FOR SENTENCE S
-----------------------------------------
T T
U U
V V
-2-
A A
B B
1. D1 has pleaded guilty to one charge of “Trafficking in a
C dangerous drug”(charge 1), contrary to section 4 of the Dangerous Drugs C
Ordinance, Cap 134 and D2 has pleaded guilty of one charge of
D D
“Possession of dangerous drug”(charge 2), contrary to section 8 of the
E Dangerous Drugs Ordinance. E
F F
THE FACTS
G G
2. At about 2:20 am on 18 January 2017, police officers on patrol
H H
in Ma On Shan intercepted D1 and D2, who were seated inside a private
I car parked at a construction site near Yiu Sha Road, Ma On Shan, New I
Territories, Hong Kong.
J J
K 3. Body search of D2 at the scene found 1 plastic bag containing K
suspected dangerous drugs (“E1”) in his right front trousers’ pocket. Under
L L
arrest and caution, D2 said that E1 is “ice” for his own consumption. He
M said that D1 knew a dangerous drugs supplier at Cheung Wah Estate, M
Fanling. D2 drove them there and gave HK$500 to D1, who alighted from
N N
the car and brought back E1.
O O
4. Under arrest and caution, D1 said that, at about 11 pm on 17
P P
January 2017, D2 drove them to Cheung Wah Estate. There, D1 went to
Q purchase E1 for HK$500 which he then passed to D2 for D2’s own Q
consumption.
R R
S 5. Written records of interview were conducted with both D1 S
and D2, who both said under caution:-
T T
U U
V V
-3-
A A
B B
(a) In the evening of 17 January 2017, they were bored and
C decided to buy some “ice” for consumption together. C
D1 called the supplier.
D D
E (b) D2 drove them to Cheung Wah Estate. There, a male E
handed E1 to D1 who was sitting inside the car. D2
F F
gave HK$500 to D1, who handed it to the male.
G G
(c) D2 then drove them to the arrest location. D1 gave E1
H H
to D2.
I I
(d) They were arrested before the “ice” could be consumed.
J J
K 6. Upon examination, the Government Chemist confirmed that K
E1 is 1 plastic bag containing 1.48 grammes of a crystalline solid
L L
containing 1.44 grammes of methamphetamine hydrochloride.
M M
7. The street value of E1 is approximately HK$503.
N N
O 8. At the material time, D1 trafficked in E1 while D2 was in O
possession of E1.
P P
Q CHARGE 1 FOR D1 (TRAFFICKING) Q
R R
Mitigation
S S
9. The criminal record of D1 shows that he had been brought to
T T
court on 3 previous occasions. He had a total of 7 convictions recorded
U U
V V
-4-
A A
B B
against him, of which five were related to dangerous drugs. He was
C sentenced to DATC in February this year. D1 is still serving his sentence C
in DATC.
D D
E 10. The antecedents statement of the defendant shows that he is E
now 27 years old. Locally born, he received education up to Form 5
F F
level. He was addicted to drug since 2008. He has a son and a daughter
G and they live with D1’s parents and two brothers in a public housing unit G
in Ma On Shan.
H H
I 11. D1 had worked in the Café de Coral for 10 years. He also I
worked as a transportation worker before. He made around $15,000 a
J J
month. He is the sole bread winner of the family.
K K
12. D1 committed the present offence by buying the ice for D2 in
L L
a hope that he could share it with D2. D1 was not engaged in commercial
M trafficking. Mr Lam for D1 submits that it amounts to social trafficking M
only. The amount of ice is 1.44g which worth $500.
N N
O 13. D1 submits a mitigation letter from his wife and a letter from O
Ms Chan of the Hong Kong Sheng Kung Hui Welfare Council. The letters
P P
mention the hardship now being faced by D1’s family. He pleads for a
Q lenient sentence from the court. Q
R R
14. D1 has no trafficking conviction.
S S
15. Mr Lam for D1 submits that 1.44 grammes of ice is a small
T T
quantity whereby the court can adopt a lower starting point than three
U U
V V
-5-
A A
B B
years. He relies on the judgment in HKSAR v Yeung Kam Chun CACC
C 427/2004 where the amount of ice was 1.59 grammes, the Court of Appeal C
said:
D D
“For the trafficking of smaller amounts of ice, the sentencing judge was
not obliged to start with three years and it would be within the discretion
E E
of the sentencing judge to adopt a lower starting point in consideration
F of the actual amount of ice involved.” F
G G
Sentencing considerations
H H
16. The sentencing guideline for trafficking in ‘Ice’ is settled. In
I I
HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 the Court of Appeal has laid
J down the starting point after trial where the quantity of ice is up to 10 J
grammes is between 3 and 7 years’ imprisonment.
K K
L 17. Mr Lam relied on Yuen Kam Chun to support that for L
trafficking of small amounts of ice, the sentencing judge was not obliged
M M
to take a starting point of 3 years and it would be within the discretion of
N the judge to adopt a starting point lower than 3 years in consideration of N
the actual amount of ice involved.
O O
18. In the present case, the amount of ice that D1 trafficked in was
P P
1.44 grammes, which was indeed a small amount. If he were a first
Q Q
offender, the court would not need to take 3 years as the starting point:
R
HKSAR v Tsang Chi Wah [2019] 5 HKLRD 373. However, the fact R
remains that he was a recidivist. He committed the present offence whilst
S S
he was on court bail in a Fanling Court case. His last conviction was in
T February 2017 which was also drug related. He was sentenced to DATC. T
It showed that he has no interest in an attempt to rehabilitate himself.
U U
V V
-6-
A A
B B
19. In view of the facts of this case, the quantity of ice involved
C C
and D1’s persistence in crime, the appropriate starting point should be 2
D years and 6 months. D
E 20. Social trafficking is still trafficking in dangerous drug and E
should not lead to any significant discount: see HKSAR v Wong Suet Hau
F F
CACC 366/2000 at paragraph 47.
G G
H
21. In HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, the H
Court of Appeal provides guidance to the court when sentencing the
I I
defendant who claims that part of the dangerous drugs is for his or her self-
J consumption. It was stated in paragraph 19 that “…when all or part of the J
drugs are intended for the trafficker’s own consumption, the ensuing
K K
discount to sentence should, depending on circumstances, fall somewhere
L between 10 and 25% of the basic starting point.” L
M 22. The prosecution also fairly accepts that there is basis to suggest M
D1 sharing the drugs under caution.
N N
O 23. On the issue of self-consumption I accept D1’s contention. He O
has a history of drug related offences and had been to the Drug Addiction
P P
Treatment Centre for treatment. Given that D1 had admitted the drugs was
Q to be shared with D2, there is sufficient basis to enable the court to say that Q
a significant proportion of the drugs was intended for self-consumption. I
R R
find that a proper discount for self-consumption is that of 10% which
S results in adjustment to 27 months. S
T T
U U
V V
-7-
A A
B B
24. I find that there are no aggravating factors, and the only
C mitigating factor is D1’s guilty plea. I sentence D1 to 18 months’ C
imprisonment on charge 1 after the one third discount.
D D
E 25. The other matters relied upon by Mr Lam in his submissions, E
for example, the fact that the defendant was the sole bread winner of the
F F
family. In my view, D1 should have thought about the welfare of his
G family before he committed the offence. G
H H
26. For the reasons given, I sentence D1 to 18 months’
I imprisonment for trafficking in dangerous drugs. With the imprisonment I
term, it will effectively cause the previous DATC order to cease to have
J J
effect.
K K
CHARGE 2 FOR D2 (POSSESSION)
L L
M Mitigation M
N N
27. The criminal record of D2 shows that he had been brought to
O court on 4 previous occasions of which 3 were drug related. He committed O
the present offence whilst he was on court bail for another drug case in
P P
KCCC1302/2017 on 21 June 2017. He is now serving his sentence in
Q DATC. Q
R R
DATC Report
S S
28. The court obtained a Drug Addiction Treatment Centre report
T T
for the D2. According to the report, D2 has been living with his parents,
U U
V V
-8-
A A
B B
elder brother and his girlfriend in a public housing unit in Ma On Shan. He
C received education up to F4. Prior to his present custody, he was a manager C
in a restaurant, earning about $13,000 per month.
D D
29. D2 disclosed that he started to abuse ice between 2008 and
E E
2010. He relapsed into taking ice in early 2013. Since then, he indulged in
F abusing ice. F
G G
30. D2 was sentenced to DATC for the first time on 21 June 2017
H
for another offence of “Possession of a dangerous drug” H
(KCCC1302/2017). His supervising officer said that D2 encountered no
I I
adjustment problem. However, his response towards counselling was
J passive and his determination to lead a drug abstinent life was susceptible J
at this moment. His overall performance was considered to be poor. The
K K
medical officer is of the opinion that he is still a drug dependent. In view
L of his weak will-power and the availability of a place in the DATC, a period L
of compulsory drug addiction treatment coupled with intensive supervision
M M
would be beneficial to him. Therefore, he is considered suitable for
N admission to a DATC under a fresh detention order. N
O 31. Mr Chui for D2 urged the court to follow the recommendation O
of the DATC report.
P P
Q Sentencing considerations Q
R R
32. D2 has been at the DATC since June this year. According to
S section 6A of the Drug Addiction Treatment Centre Ordinance, Cap.244, S
if a fresh detention order is made in respect of a person who is already
T T
U U
V V
-9-
A A
B B
undergoing a period of treatment at the DATC, the first detention order
C shall cease to have effect. C
D D
33. Having concluded that D2 is a drug abuser, and that he stands
E a good chance of rehabilitation at the DATC and after taking into account E
all the relevant circumstances, I sentence D2 to DATC for the charge that
F F
he is facing.
G G
H H
( Amy Chan )
Deputy District Judge
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 244/2017
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO 244 OF 2017 E
F ------------------------- F
HKSAR
G G
v
H TSE MAN FAI (D1) H
LAM CHUN HEI (D2)
I I
--------------------------
J J
Before: Deputy District Judge Amy Chan
K K
Date: 5 September 2017
L Present: Mr Bernard Yuen, Counsel on Fiat, for HKSAR/Director of L
Public Prosecution
M M
Mr Lam Hoy Lee Laurie of Hastings & Co, assigned by the
N N
Director of Legal Aid, for the 1st defendant
O
Mr Chui Pak Ming Norman of Chui & Lau, assigned by the O
nd
Director of Legal Aid, for the 2 defendant
P P
Offence: [1] Trafficking in a dangerous drug (販運危險藥物) –D1
Q [2] Possession of a dangerous drug (管有危險藥物) – D2 Q
R R
-----------------------------------------
S REASONS FOR SENTENCE S
-----------------------------------------
T T
U U
V V
-2-
A A
B B
1. D1 has pleaded guilty to one charge of “Trafficking in a
C dangerous drug”(charge 1), contrary to section 4 of the Dangerous Drugs C
Ordinance, Cap 134 and D2 has pleaded guilty of one charge of
D D
“Possession of dangerous drug”(charge 2), contrary to section 8 of the
E Dangerous Drugs Ordinance. E
F F
THE FACTS
G G
2. At about 2:20 am on 18 January 2017, police officers on patrol
H H
in Ma On Shan intercepted D1 and D2, who were seated inside a private
I car parked at a construction site near Yiu Sha Road, Ma On Shan, New I
Territories, Hong Kong.
J J
K 3. Body search of D2 at the scene found 1 plastic bag containing K
suspected dangerous drugs (“E1”) in his right front trousers’ pocket. Under
L L
arrest and caution, D2 said that E1 is “ice” for his own consumption. He
M said that D1 knew a dangerous drugs supplier at Cheung Wah Estate, M
Fanling. D2 drove them there and gave HK$500 to D1, who alighted from
N N
the car and brought back E1.
O O
4. Under arrest and caution, D1 said that, at about 11 pm on 17
P P
January 2017, D2 drove them to Cheung Wah Estate. There, D1 went to
Q purchase E1 for HK$500 which he then passed to D2 for D2’s own Q
consumption.
R R
S 5. Written records of interview were conducted with both D1 S
and D2, who both said under caution:-
T T
U U
V V
-3-
A A
B B
(a) In the evening of 17 January 2017, they were bored and
C decided to buy some “ice” for consumption together. C
D1 called the supplier.
D D
E (b) D2 drove them to Cheung Wah Estate. There, a male E
handed E1 to D1 who was sitting inside the car. D2
F F
gave HK$500 to D1, who handed it to the male.
G G
(c) D2 then drove them to the arrest location. D1 gave E1
H H
to D2.
I I
(d) They were arrested before the “ice” could be consumed.
J J
K 6. Upon examination, the Government Chemist confirmed that K
E1 is 1 plastic bag containing 1.48 grammes of a crystalline solid
L L
containing 1.44 grammes of methamphetamine hydrochloride.
M M
7. The street value of E1 is approximately HK$503.
N N
O 8. At the material time, D1 trafficked in E1 while D2 was in O
possession of E1.
P P
Q CHARGE 1 FOR D1 (TRAFFICKING) Q
R R
Mitigation
S S
9. The criminal record of D1 shows that he had been brought to
T T
court on 3 previous occasions. He had a total of 7 convictions recorded
U U
V V
-4-
A A
B B
against him, of which five were related to dangerous drugs. He was
C sentenced to DATC in February this year. D1 is still serving his sentence C
in DATC.
D D
E 10. The antecedents statement of the defendant shows that he is E
now 27 years old. Locally born, he received education up to Form 5
F F
level. He was addicted to drug since 2008. He has a son and a daughter
G and they live with D1’s parents and two brothers in a public housing unit G
in Ma On Shan.
H H
I 11. D1 had worked in the Café de Coral for 10 years. He also I
worked as a transportation worker before. He made around $15,000 a
J J
month. He is the sole bread winner of the family.
K K
12. D1 committed the present offence by buying the ice for D2 in
L L
a hope that he could share it with D2. D1 was not engaged in commercial
M trafficking. Mr Lam for D1 submits that it amounts to social trafficking M
only. The amount of ice is 1.44g which worth $500.
N N
O 13. D1 submits a mitigation letter from his wife and a letter from O
Ms Chan of the Hong Kong Sheng Kung Hui Welfare Council. The letters
P P
mention the hardship now being faced by D1’s family. He pleads for a
Q lenient sentence from the court. Q
R R
14. D1 has no trafficking conviction.
S S
15. Mr Lam for D1 submits that 1.44 grammes of ice is a small
T T
quantity whereby the court can adopt a lower starting point than three
U U
V V
-5-
A A
B B
years. He relies on the judgment in HKSAR v Yeung Kam Chun CACC
C 427/2004 where the amount of ice was 1.59 grammes, the Court of Appeal C
said:
D D
“For the trafficking of smaller amounts of ice, the sentencing judge was
not obliged to start with three years and it would be within the discretion
E E
of the sentencing judge to adopt a lower starting point in consideration
F of the actual amount of ice involved.” F
G G
Sentencing considerations
H H
16. The sentencing guideline for trafficking in ‘Ice’ is settled. In
I I
HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 the Court of Appeal has laid
J down the starting point after trial where the quantity of ice is up to 10 J
grammes is between 3 and 7 years’ imprisonment.
K K
L 17. Mr Lam relied on Yuen Kam Chun to support that for L
trafficking of small amounts of ice, the sentencing judge was not obliged
M M
to take a starting point of 3 years and it would be within the discretion of
N the judge to adopt a starting point lower than 3 years in consideration of N
the actual amount of ice involved.
O O
18. In the present case, the amount of ice that D1 trafficked in was
P P
1.44 grammes, which was indeed a small amount. If he were a first
Q Q
offender, the court would not need to take 3 years as the starting point:
R
HKSAR v Tsang Chi Wah [2019] 5 HKLRD 373. However, the fact R
remains that he was a recidivist. He committed the present offence whilst
S S
he was on court bail in a Fanling Court case. His last conviction was in
T February 2017 which was also drug related. He was sentenced to DATC. T
It showed that he has no interest in an attempt to rehabilitate himself.
U U
V V
-6-
A A
B B
19. In view of the facts of this case, the quantity of ice involved
C C
and D1’s persistence in crime, the appropriate starting point should be 2
D years and 6 months. D
E 20. Social trafficking is still trafficking in dangerous drug and E
should not lead to any significant discount: see HKSAR v Wong Suet Hau
F F
CACC 366/2000 at paragraph 47.
G G
H
21. In HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, the H
Court of Appeal provides guidance to the court when sentencing the
I I
defendant who claims that part of the dangerous drugs is for his or her self-
J consumption. It was stated in paragraph 19 that “…when all or part of the J
drugs are intended for the trafficker’s own consumption, the ensuing
K K
discount to sentence should, depending on circumstances, fall somewhere
L between 10 and 25% of the basic starting point.” L
M 22. The prosecution also fairly accepts that there is basis to suggest M
D1 sharing the drugs under caution.
N N
O 23. On the issue of self-consumption I accept D1’s contention. He O
has a history of drug related offences and had been to the Drug Addiction
P P
Treatment Centre for treatment. Given that D1 had admitted the drugs was
Q to be shared with D2, there is sufficient basis to enable the court to say that Q
a significant proportion of the drugs was intended for self-consumption. I
R R
find that a proper discount for self-consumption is that of 10% which
S results in adjustment to 27 months. S
T T
U U
V V
-7-
A A
B B
24. I find that there are no aggravating factors, and the only
C mitigating factor is D1’s guilty plea. I sentence D1 to 18 months’ C
imprisonment on charge 1 after the one third discount.
D D
E 25. The other matters relied upon by Mr Lam in his submissions, E
for example, the fact that the defendant was the sole bread winner of the
F F
family. In my view, D1 should have thought about the welfare of his
G family before he committed the offence. G
H H
26. For the reasons given, I sentence D1 to 18 months’
I imprisonment for trafficking in dangerous drugs. With the imprisonment I
term, it will effectively cause the previous DATC order to cease to have
J J
effect.
K K
CHARGE 2 FOR D2 (POSSESSION)
L L
M Mitigation M
N N
27. The criminal record of D2 shows that he had been brought to
O court on 4 previous occasions of which 3 were drug related. He committed O
the present offence whilst he was on court bail for another drug case in
P P
KCCC1302/2017 on 21 June 2017. He is now serving his sentence in
Q DATC. Q
R R
DATC Report
S S
28. The court obtained a Drug Addiction Treatment Centre report
T T
for the D2. According to the report, D2 has been living with his parents,
U U
V V
-8-
A A
B B
elder brother and his girlfriend in a public housing unit in Ma On Shan. He
C received education up to F4. Prior to his present custody, he was a manager C
in a restaurant, earning about $13,000 per month.
D D
29. D2 disclosed that he started to abuse ice between 2008 and
E E
2010. He relapsed into taking ice in early 2013. Since then, he indulged in
F abusing ice. F
G G
30. D2 was sentenced to DATC for the first time on 21 June 2017
H
for another offence of “Possession of a dangerous drug” H
(KCCC1302/2017). His supervising officer said that D2 encountered no
I I
adjustment problem. However, his response towards counselling was
J passive and his determination to lead a drug abstinent life was susceptible J
at this moment. His overall performance was considered to be poor. The
K K
medical officer is of the opinion that he is still a drug dependent. In view
L of his weak will-power and the availability of a place in the DATC, a period L
of compulsory drug addiction treatment coupled with intensive supervision
M M
would be beneficial to him. Therefore, he is considered suitable for
N admission to a DATC under a fresh detention order. N
O 31. Mr Chui for D2 urged the court to follow the recommendation O
of the DATC report.
P P
Q Sentencing considerations Q
R R
32. D2 has been at the DATC since June this year. According to
S section 6A of the Drug Addiction Treatment Centre Ordinance, Cap.244, S
if a fresh detention order is made in respect of a person who is already
T T
U U
V V
-9-
A A
B B
undergoing a period of treatment at the DATC, the first detention order
C shall cease to have effect. C
D D
33. Having concluded that D2 is a drug abuser, and that he stands
E a good chance of rehabilitation at the DATC and after taking into account E
all the relevant circumstances, I sentence D2 to DATC for the charge that
F F
he is facing.
G G
H H
( Amy Chan )
Deputy District Judge
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V