HKSAR v. LAW WAI CHEONG

DCCC 130/2024

[2024] HKDC 2136

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 130 OF 2024

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REASONS FOR SENTENCE

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1.  The Defendant pleaded guilty to a charge of trafficking in dangerous drugs, namely:-

(a)  6.67 grams of a solid containing 4.98 grams of cocaine;

(b)  0.72 grams of a solid containing 0.60 grams of ketamine.

2.  On 14 October 2023, around 3:13 am, the police noticed the Defendant was driving a vehicle unsteadily and therefore intercepted the vehicle for a search.  The police saw the Defendant dropped a grey zipper bag (“Grey Bag’)  from his hand onto the driver’s seat floor and he attempted to run away by climbing to the front passenger seat.  He was stopped and it was found inside the Grey Bag containing the following drugs:-

(a)  18 transparent releasable plastic bags containing a total of 5.20 grams of a solid containing 3.80 grams of cocaine (Exhibit 1);

(b)  3 plastic bags containing a total of 1.41 grams of a solid containing 1.18 grams of cocaine (Exhibit 2);

(c)  3 plastic bags containing a total of 0.69 grams of a solid containing 0.60 grams of ketamine (Exhibit 3);

(d)  a Hong Kong $20 bank note folded into a packet containing seal 0.06 grams of a solid containing cocaine (Exhibit 4);

(e)  a piece of paper fold into a packet containing 0.03 grams of a solid containing ketamine (Exhibit 5).

3.  Three mobile phones and $8,750 in cash were found in the vehicle.

4.  He remained silent under caution.

5.  The estimated street value of the drugs was HK$6,083.00.

6.  The Defendant had leased the vehicle from Bayview Development Limited since 18 July 2023 for HK$5,000.00 per month.

Criminal records

7.  Since 1999 to 2022, the Defendant has seven conviction records, four related to dangerous drugs offences, but none of them involved trafficking.

Mitigation

8.  The Defendant is now aged 39, he earned HK$18,000.00 at the time of his arrest.  His mother has suffered from cancer 10 years ago, but replased 2 years ago.

9.  There is a letter from his family to tell me that the Defendant has suffered from skin disease and that affected his appearance, which has a bearing on him psychologically.  The Society for the Aid and Rehabilitation of Drugs Abusers had informed me that the Defendant had been admitted to Shek Kwu Chau Treatment and Rehabilitation Centre for residential drug treatment on 3 occasions, the last admission was from August 2022 to March 2023.

10.  He lived in a halfway house from March to June 2023, and during this period of time, all the urine tests results were negative from all types of drugs.  The Defendant also contributed part of his earnings to support his mother’s living.  The Defendant was determined to stay away from all his drugs peers.

11.  However, the Defendant relapsed to drugs in order to cope with his negative emotion from his own Psoriasis problem and his mother’s cancer situation.

12.  The Defence also said that part of the drugs were for his own consumption.

Sentence

13.  The sentence guidelines for trafficking in cocaine can be found in R v Lau Tak Ming & others [1990] 2 HKLRD 370 and HKSAR v Pedro Nel Rojas [1994] 2 HKCLR 69.  As to a narcotic content of 4.98 grammes of cocaine, it attracts a sentence of 3 years 6 months.

14.  While trafficking in ketamine, the sentencing authority is HKSAR v Hii Siew Cheng [2009] 1 HKLRD 1, for a narcotic content of 0.60 gramme of ketamine,  the sentence is within the court’s discretion, mathematically calculated, it attracts a sentence of 1 year and 2 months.

15.  The Defence accepted that to take combine approach and cocaine as the base drug for sentencing.  The results of the 3 tests are as follow:-

(a)  Absurdity test is 44 months;

(b)  Conversion test is 44 months;

(c)  Ratio test is 43 months.

16.  As such, I take 3 years and 6 months as the starting point, I adjust the starting point upward by 1 month to take into account of the quantity of ketamine.  That arrives at 3 years and 7 months.

17.  The Defence also accepts that trafficking in 2 types of drugs is an aggravating factor.  I further enhance the starting point by 2 months, the sentence is now comes to 3 years and 9 months (3 years and 7 months + 2 months).

18.  In view of his guilty plea, the Defendant is entitled to ¹/₃ discount, it comes down to 2 years and 6 months.

Self-consumption

19.  The Defence said that the Defendant is entitled to further discount as part of the drugs, that were Exhibits 4 and 5, were the leftover of the drugs he consumed.  They were:-

(a)  0.06 gramme of cocaine;

(b)  0.03 gramme of ketamine.

(c)  The total is 0.09 gramme.

20.  I notice the packaging of Exhibits 4 and 5 were very different from Exhibits 1 to 3.  They were packed by dollar note and a piece of paper.  The quantity was relatively smaller. 

21.  Assuming that Exhibits 4 and 5 were for his own consumption, it only accounts for 1.6% of the total quantity of the drugs being seized.

22.  As the Defence rightly point out that if it is not a “significant portion” of the drugs were to be consumed by the Defendant, he is not entitled to further discount.  As said in the judgement of HKSAR v Cheung Wai Man [2019] 1 HKLRD 817 that:-

“if he does not meet this threshold, he is not entitled to the discount as suggest in Chow Chun Sang.”

23.  By all standard, the 1.6% cannot reach the level of  “significant portion” as stated in the case of Cheung Wai Man.

24.  I now come to consider whether any part of the drugs in exhibit 1 to 3 were for his self-consumption.

25.  The Defence informed me that the Defendant will not give evidence in this aspect and he provided no documents to his claim of self-consumption.

26.  As said in the judgement of Cheung Wai Man that :-

[54] …. Mere assertions by counsel from the bar table … will generally not suffice. …. 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.”

27.  I also informed the Defence that having regard to the danger of abuse in this avenue of mitigation, this Court should look with greatest care at all the surrounding circumstances in order to decide whether the claim of self-consumption is made out.

28.  As such, I will proceed to consider the factors as discussed with the Defence in his mitigation as stated in HKSAR v Wong Suet Hau CACC 366/2000 which was also quoted in the judgement of Cheung Wai Man at paragraph 51.  In the present case :-

(i)  Exhibit 1 to 3 were individually wrapped which means they are ready for sell and distribution

(ii)  When the Defendant was arrested, he was in a rented vehicle. He used HK$5,000.00 per month to rent this vehicle, bearing in mind that he earned HK$18,000.00 per month and contributed HK$4,000.00 to his mother. The drugs value was HK$6,000.00. In view of the high standard of living costs in Hong Kong, he simply has no financial resources to buy the drugs in question. The purpose of renting the vehicle was for him to deliver /sell drugs.

(iii)  It was about 3:00 a.m. in the Wong Tai Sin, which is a residential area and all the shops were closed. There was no commercial activities. He himself lived in Tsing Yi Estate, which was far away from Wong Tai Sin.

(iv)  There was no paraphernalia used for the consumption of drugs inside the vehicle.

(v)  The Defendant remained silent under caution.

(vi)  His last conviction for possession of dangerous drugs was in 2017. Some 5 years prior to his current arrest.

(vii)  His urine test result after arrest was negative from all types of drugs. The Defence could not provide any information as to when was his last occasion of taking drugs.

29.  To this end, taking all the information into account, it is clear to me that the Defendant‘s claim for self-consumption does not make out. The Defendant is not entitled to further discount.  I refuse to reduce the starting point, as he simply not entitled to it.

30.  The Defendant is ordered to serve a sentence for a period of 2 years and 6 months.