HKSAR v CHEUNG KA HO, BRIAN

DCCC 553/2021

[2022] HKDC 1436

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 553 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to a charge of trafficking in a dangerous drugs, namely 6.85 grammes of a solid containing 5.91 grammes of cocaine.

The facts

2.  On 4 November, 2020, at about 0120 hours, the police stopped a private car of which the defendant was the driver and there was a passenger next to him.

3.  The police found a plastic bag which contained 23 re-sealable transparent plastic bags containing the cocaine in question inside the fuse compartment on the bottom right side of the steering wheel.

4.  Two bags of cash in a sum of HK$63,000 and HK$27,300 were also found inside the vehicle.

5.  The defendant said in the record of interview that: -

(a) The drugs were purchased from an unknown male in Tsim Sha Tsui 3 to 4 days before his arrest.

(b) He knew that they were cocaine.

(c) He intended to share half of the drugs with the passenger in the car.

6.  The estimate value of the drugs was about $13.197.

Mitigation

7.  The defendant is now aged 25 years, he and his fiancé have a son who is now 8 months old.  He has no criminal record.

8.  The defendant comes from a well to do, but complicated background.  His parents were separated when he was one year old, he has five half siblings aged from 49, 28, 22 ,11 and 2 years old.

9.  He studied up to secondary 6 and works as an office assistance in his father’s office, earning $10,000 per month.

10.  The defendant came from a broken family and sought social recognition from bad peers.  He started to take drugs under their bad influence.  However, I am told today that he is not a drug dependent.

11.  The defendant was released on bail in May, 2021.  He approached Eastern/Wanchai District Youth Outreaching Social Work Team to treat his drugs problem.  The 5 test results in June to August 2021 were all negative.

12.  He now has a son and this is the strongest motivation for him to stay straight and be a good father to him.

13.  The defendant, his finance and his mother all wrote to this court to plead for leniency.  They also come to court to provide him the necessary support.

Sentence

14.  The sentencing guideline for trafficking in cocaine is well settled, as to the quantity up to 10 grammes, the sentence is between 2 to 5 years.  R v Lau Tak Ming [1990] 2 HKLR 370 refers.

15.  The defence advanced his mitigation on the ground that the defendant committed the present offence due to his immaturity, his complicated family background and his unsuccessful education, he failed to live up to his father’s expectation.  Nonetheless, now he has a young child, he has all the support from his mother, his finance and the social worker, the defence asked this court for a lenient sentence.

16.  All I can say is that this does not amount to any mitigation for reduction of sentence, otherwise, for those who come before the court with this mitigating factor would expect a lenient sentence, the sentencing guideline will lose its deterrent effect.

17.  In the present case, the quantity of the narcotic content is 5.91 grammes of cocaine, the appropriate starting point is 3 years 9 months.

18.  Since a trial date has been set, it is a late plea, the defendant is only entitled to 25% discount; the sentence is now 33 months and 22 days.

19.  As there is no other mitigation factors to reduce the sentence, I order the defendant to serve a period of 33 months and 22 days.