HKSAR v. CHEUK HAU CHUNG

HCCC 341/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRAYTIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 341 OF 2013

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DECISION ON SENTENCE

1.  The accused has pleaded guilty to two counts of trafficking in dangerous drugs before me, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The details of the offences will be apparent from the Summary of Facts prepared by the prosecution and admitted by the accused and it is set out below.

2.  At about 1:23 am on 30 January 2013 while a team of police officers were patrolling outside Century House at Nos. 3-4 Hanoi Road, Tsim Sha Tsui, Kowloon, they spotted the accused acting furtively with his right hand rested on the right trouser pocket.  An officer intercepted the accused and found the following dangerous drugs on his person:

· an aluminium foil bag containing 20 foil packs containing a total of 200 tablets containing one gramme of nimetazepam, and

· one purple foil bag printed with “Zhong Guo Ming Cha中國名茶” which contained a plastic bag containing 12.06 grammes of a solid containing 9.41 grammes of cocaine.

3.  Under caution the accused claimed the “Ng Chai” and the cocaine were for his consumption.

4.  He was brought back to the police station where further dangerous drugs were found underneath his underpants, namely:

· 24 small plastic bags containing a total of 4.93 grammes of a solid containing 3.77 grammes of cocaine,

· one foil pack containing four tablets containing 0.01 gramme of nimetazepam, and

· a plastic bag containing 1.39 grammes of a powder containing 1.02 grammes of ketamine.

5.  Upon further caution, the accused claimed he bought the several packets of stuff for his own consumption.

6.  Cash HK$7,292, RMB1,180 and four mobile phones were also found in his possession.

7.  During the subsequent video-recorded interviews he claimed the following:

· at about 10 pm on 29 January 2013 he went to a bar in Hanoi Road to drink; when he was about to leave at about 1 am on 30 January 2013, a male approached him and gave him a treat to “Ng Chai”, a dangerous drug;

· the male offered to sell him dangerous drugs;

· as he was upset due to a quarrel with his wife and also because he had drunk too much, he bought a large quantity of cocaine and “Ng Chai” at $5,000 from the male;

· the male also gave him some ketamine free of charge;

· he had at the time $10,000 from his monthly salary as an air-conditioning worker and from it he paid $5,000 to the male;

· he was arrested on his way home;

· he would not have spent so much to buy drugs but for the reasons that he was confused and barely conscious at the time;

· he did not normally take drugs;

· he had to support his wife and daughter;

· after getting the drugs, he went to the toilet and placed them in different places of his person; and

· two mobile phones ere his and two belonged to his female friend.

8.  At about 11:00 pm on 30 January 2013 while the police were at Room D, 4th Floor, No. 256 Sai Yeung Choi Street South, Mong Kok, Kowloon investigating a suspected case of burglary, they found that the door of the neighbouring room, namely Room G was unlocked and there were signs of ransacking inside.

9.  The police found a monitor on the computer desk inside the room. It was turned on and it displayed the staircase linking the 3rd and the 4th floor of the building.  The police later discovered a surveillance camera outside and above the main door of a flat at the 3rd floor of the building.  The camera was connected to the monitor at Room G.

10.  Upon a search of Room G the police found the following dangerous drugs:

· Near the washbasin there was a plastic bag containing 10.81 grammes of a solid containing 6.61 grammes of cocaine;

· On the computer desk there was a plastic box containing 1.86 grammes or a solid containing 1.27 grammes of cocaine;

· On the television there was a yellow cloth bag which contained;

(i) a purple foil printed with “Zhong Guo Ming Cha中國名茶” containing eight plastic bags containing a total of 1.71 grammes of cocaine and a plastic bag containing 0.75 grammes of a powder containing 0.34 gramme of ketamine;

(ii) two purple foil bag printed with “Zhong Guo Ming Cha中國名茶” and a foil bag printed with “觀音王” which contained a total of 38.83 grammes of a crystalline solid containing 36.59 grammes of methamphetamine hydrochloride;

(iii) a purple foil bag printed with “Zhong Guo Ming Cha中國名茶” containing 11.98 grammes of a solid containing 8.85 grammes of cocaine; and

(iv) an aluminium foil bag containing 26 foil packs containing a total of 260 tablets containing 1.29 grammes of nimetazepam;

· on the television there was a brown cloth bag which contained four tin foil packets containing a total of 648 tablets containing 3.25 grammes of nimetazepam;

· inside a wooden kitchen cupboard there was a plastic bag containing: (i) a large quantity of empty re-sealable plastic bags of various sizes; (ii) a bundle of foil bags printed with the names of different types of Chinese tea; (iii) a bundle of round stickers, and (iv) a bundle of empty plastic bags.

11.  The police found a tenancy agreement which states that the accused rented the room for a period of two years from 15 December 2012 at a monthly rental of HK$4,700.

12.  At 4:22 am on 31 January 2013 the accused was arrested for trafficking in dangerous drugs.  Under caution he said all the dangerous drugs found in the premises belonged to him and had nothing to do with other people.

13.  During the subsequent video-recorded interview the accused claimed, inter alia, the following:

· the dangerous drugs inside Room G belonged to him;

· he rented the room for HK$4,700 a month;

· he had a quarrel with his wife so he stayed at the premises over that period;

· he lived with his wife, daughter and his father in Shek Kip Mei;

· about one week ago he bought all the drugs for about $3,500 when drinking in a bar in Tsim Sha Tsui; all the drugs were for his consumption;

· he bought a large quantity of nimetazepam tablets because he was addicted to it; he would take about 10 tablets a day;

· when asked whether he had put the drugs himself into the tea foil bags, he said he did not know and had no clear recollection; he claimed the empty tea foil bags were of no particular purpose; and

· when shown the tea foil bags containing drugs, he claimed he did not know their presence.

14.  The estimated retail price for each dangerous drug found in this case at the time of seizure is as follows:

Cocaine	HK$44,953
1,112 tables of nimetazepam	HK$63,384
Methamphetamine hydrochloride	HK$27,918
Ketamine	HK$250

15.  The accused now admits and accepts that he was trafficking in the dangerous drugs seized in this case.

16.  Counsel for the prosecution and for the defence have very helpfully provided the court with the relevant authorities on the sentencing tariffs regarding the different kinds of drug found in this case and also how to properly approach sentencing where, as in the present case, a cocktail of drugs is involved.

17.  First, I would set out the total quantities of the drugs involved in the two counts, in order to help measure the sentences appropriate for each of the drugs.

Count 1

cocaine	nimetazepam	ketamine
16.99 gm of a solid containing 13.18 gm of cocaine	204 tablets containing 1.01 gm of nimetazepam	1.39 gm of a powder containing 1.02 gm of ketamine

Count 2

cocaine	nimetazepam	ketamine	ice
26.36 gm of a solid containing 17.84 gm of cocaine	908 tablets containing 4.54 gm of nimetazepam	0.75 gm of a powder containing 0.34 gm of ketamine	38.83 gm of a crystalline solid containing 36.59 gm of ice

18.  I also set out the total quantities of the narcotics involved in the two counts:

cocaine	nimetazepam	ketamine	ice
31.02 gm of cocaine	1,112 tablets containing 5.55 gm of nimetazepam	1.36 gm of ketamine	36.59 gm of ice

19.  The relevant starting point tariffs are as follows:

(a) for cocaine, 10 to 50 grammes, 5 to 8 years (see AG v Pedro Nel Rojas [1994] 2 HKCLR 69 and The Queen v LAU Tak-ming & Anor [1990] 2 HKLR 370, sentencing tariff for heroin equally applicable to cocaine);

(b) for ketamine, 1 to 10 grammes, 2 to 4 years (see Secretary for Justice v HII Siew-cheng [2009] 1 HKLRD 1);

(c) for nimetazepam, applying the sentencing guidelines for ketamine (see HKSAR v WONG Kin Kau [2010] 4 HKC 443), 1 to 10 grammes, 2 to 4 years (Secretary for Justice v HII Siew-cheng [2009] 1 HKLRD 1);

(d) for methamphetamine hydrochloride (ice), 10 to 70 grammes, 7 to 10 years (see AG v CHING Kwok-hung [1991] 2 HKLR 125).

20.  Where there are different kinds of drugs and different offences involved, the Court of Appeal in HKSAR v PAU King Kong, CACC 465/2012 (6 June 2013, unreported) emphasized the importance of the overall sentence to reflect the offender’s true culpability (para 30).  It also stated:

“40. Thus, it is clear from the authorities that the totality principle in helping the sentencer arrive at a just sentence looks not just to the seriousness of the offences and the culpability of the offender, but also to the circumstances of the offender. This gives it particular significance in drug trafficking cases precisely because the sentencing discretion of the judge is so severely constrained in terms of identifying a starting point.”

21.  In HKSAR v CHAN Yuk-leong CACC 318/2013 (8 April 2014, unreported), a case involving two counts, one for trafficking in 31.53 gm of ketamine, 42.01 gm of methamphetamine hydrochloride (ice) and 30.29 gm of cocaine, and the other count for possession of 0.24 gm of liquid ice, the Court of Appeal discussed the different approaches and tests for sentencing.  The Court commented that the judge applied the correct “combined approach”, using the ice (the most serious and most potent of the drugs) as the base for sentence.  The Court then adopted counsel’s suggestion to apply various tests to cross-check the sentence to see if it was manifestly excessive:

(a) the “absurdity test” – comparing the sentence proposed with a sentence where it is assumed that the entire quantity seized contained only the most serious drug;

(b) the “conversion test” – comparing the tariffs applicable to different drugs to arrive at a conversion rate, so that a single tariff for one drug could then be applied to the entire quantity seized; and

(c) the “ratio test”- allowing for the ratio of the weight of the two different dangerous drugs and their related ranges of sentence; this is to first get the ratio of the quantity of each drug in the total quantity of the drugs seized, second, to apply the tariff for each particular drug to the ratio quantity, and third to add the sentences for each of the drugs together to arrive at the total sentence.

22.  The Court also observed that trafficking in different dangerous drugs at the same time was an aggravating factor (see HKSAR v YAU Ka Ming CACC 144/2013) because of the ability of the trafficker to cater to a wider market (HKSAR v YIM Hung Lai Ricky CACC 266/2011 (13 February 2012, unreported).

23.  I first set out the tariff starting points for the total of drugs involved:

31.02 gm of cocaine	1,112 tablets containing 5.55 gm of nimetazepam	1.36 gm of ketamine	36.59 gm of ice
starting point 6.5 years	starting point 3 years	starting point 2 years	starting point 8.5 years

24.  Using the combined approach (see HKSAR v YIP Wai Yin & Anor CACC 80/2003 (7 July 2004, unreported), para 10) and cross-checking with the absurdity test, if one adds the total quantity of the other drugs (37.93 gm) to the quantity of ice (the most potent of the drugs), being 37.93 + 36.59 gm, equalling 74.52 gm, the starting point would be above 10 years.  But anyway, the quantity of ice alone, being 36.59 gm, will attract a starting point of 8.5 years.  It is therefore appropriate, in my view, taking into account the variety of drugs that would cater to a wider market as an aggravating feature, to adopt the overall starting point of 10 years for the two counts.

25.  Ms Chow, on behalf of the accused, tells me that the accused used part of the drugs, namely ice, for his own consumption.  She produces a medical report prepared by a senior medical officer of the Lai Chi Kok Reception Centre that states that the urine specimen collected from the accused on 2 February 2013 showed positive result to amphetamine.  I accept that the accused was a drug abuser and he would consume some of the drugs found in this case.  The latent risk factor itself is also higher regarding the various types of drugs the accused had and also that packing paraphernalia were found inside his flat.  In HKSAR v CHOW Chun Sang [2012] 2 HKLRD 1121, the Court of Appeal discussed the authorities on the defendant’s self-consumption of the drugs.  Recognizing it as a mitigating factor, the Court said:

“19. We are of the view that in drug trafficking cases, when all or part of the drugs are intended for the trafficker’s own consumption, the ensuing discount to sentence should, depending on circumstances, fall somewhere between 10% and 25% of the basic starting point. In determining the extent of discount in a particular case, the court should have regard to factors including the total quantities of the drugs involved, proportion of the drugs intended for self-use, the nature of the drugs, whether the drug trafficking was for financial gain, whether the trafficking was organised and premeditated, and the background and criminal record of the defendant. We need to emphasise that unless the judge has erred in principle, the appellate court should not interfere with a discount to sentence given by the judge on account of self-consumption of part of the drugs a defendant trafficked in.

20. As pointed out by the Judge, possession of ‘ice’ for personal consumption is also an offence in itself. Furthermore, we must not overlook the latest risk that the portion of the drug intended for the appellant’s own consumption may be given or sent to others.”

26.  With all the above sentencing guidelines and principles in mind, I proceed to sentence as follows:

(1) For Count 1, I adopt a starting point of 5.5 years.

(2) For Count 2, I adopt a starting point of 9 years.

(3) The above starting points have already taken into account the aggravating feature of the variety of drugs being able to cater to a wider market, the fact that the accused has previous convictions of possession and trafficking in dangerous drugs and his personal circumstances of having a wife and young daughter to support.

(4) To give allowance that part of the drugs was for the accused’s own consumption, while I also take into account the latent risk factor that part of the drugs may end up in the hands of others, I adopt a discount from the starting points of about 15 per cent for both counts, thus reducing the starting point for Count 1 to 56 months (4 years and 8 months) and reducing that for Count 2 to 92 months (7 years and 8 months).

(5) Giving the accused a full one-third discount for his guilty plea, the sentences for the two counts are respectively 3 years 1 months and 5 years 1 month.

(6) I apply the totality principle to reflect the true culpability of the accused in respect of the two different occasions of drug trafficking, to reach the overall sentence by making 5 months of Count 1 to run consecutively to the sentence of Count 2, reaching an overall sentence for both counts a term of 5 years and 6 months.

27.  I therefore pass the following sentences on the accused: on Count 1, a sentence of 3 years 1 month; on Count 2, a sentence of 5 years 1 month.  I order 5 months of Count 1 to run consecutively to the sentence on Count 2, making the overall sentence that the accused has to serve one of 5 years and 6 months.