HKSAR v. CHENG KWOK CHEUNG

DCCC 147/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 147 OF 2017

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REASONS FOR SENTENCE

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1.  This is a case of stop and search by the police in the street leading to the finding of drugs, namely, 7.67 grammes of a mixture containing 5.14 grammes of heroin hydrochloride.

2.  The defendant, a 38-year-old man, pleaded guilty before me to one count of trafficking in dangerous drugs, the amount of which is stipulated in the preceding paragraph.

3.  On the day of offence (21 December 2016) at around 6:20 a.m., a patrolling offices stopped the defendant outside a primary school in Ma Miu Road, Yuen Long, and found the drugs in question in the left pocket of the defendants jacket.

4.  The drugs were put in 50 plastic straw packets and evenly contained in 5 re-sealable plastic bags of 10 packets each and then wrapped by adhesive tape in one single re-sealable plastic bag.

5.  Also found on the defendant were cash HK$30, RMB $30 and a mobile phone. At the time of his arrest, defendant admitted to the police under caution that the drugs were for his own consumption.

6.  The street value of the drugs seized is estimated to be $5,400.

7.  In a subsequent house search which was conducted by the police at the defendant’s residence in Yuen Long, nothing incriminating was discovered.

8.  The defendant has amassed 11 previous convictions over the past 21 years; 7 of them are drug-related, two trafficking and five possession. His first conviction is possession of dangerous drugs in 1996 for which he was sentenced to DATC. About two weeks later, he was sentenced to prison for a total term of 24 months for two counts of trafficking in dangerous drugs.

9.  In mitigation, the court was told that apart from receiving $4,000 a month from the social welfare authorities as a CSSA recipient, the defendant, who remains single, also had a part-time job as a transportation worker earning $7,000 a month on average.

10.  His father passed away a long time ago and his mother left him when he was small. He now lives in a village house in Yuen Long together with two uncles and two brothers, counsel said.

11.  Counsel for the defendant stressed the fact that the defendant had been a long-time drug abuser since 1996 up until at least 2007 when he was sent to DATC for the offence (theft) of his last conviction.

12.  Counsel also mentioned that the defendant had been detained in Siu Lam for some mental issues, but made it clear that his mental problem had nothing to do with his commission of the present offence.

13.  In his letter to the court, the defendant stated that he now realised it was completely wrong for him to take drugs to relieve the stress of his life, and promised to stay away from drugs in the future.

14.  The defendant asserted through his counsel that half of the drugs was for his own consumption and relied on the case Chow Chun Sang CACC 135/2011 as authority for a further reduction in sentence; to that assertion, I have indicated to defence that on the evidence before the court then, I am not prepared to accept it but would be willing to hear further evidence to determine the issue. Having taken instructions from the defendant, counsel said that there wouldn’t be any evidence from defence.

15.  I have grave doubt about the defendant’s claim because his story of part consumption is not worthy of belief:

(1) Now the defendant pleaded guilty to trafficking, that would mean he had lied to the police at the time of arrest when he said he had all the drugs for his consumption;

(2) He now tells the court that half of the drugs is for his consumption, by his plea to trafficking, what he is in effect saying is that at the time when he was stopped by the police, he was engaging in trafficking activities, mixing the drugs for trafficking with those for his own consumption. Being an experienced drugs abuser, he must have realised that if he ever ran into a law-enforcement officer in the street, he would very likely be charged with trafficking in the whole lot, and would face a lengthy sentence as the inevitable consequence. I would therefore expect the defendant at least to separate those drugs for his own consumption from those for trafficking.

(3) In the instant case, the defendant lives in Yuen Long area and he was stopped by the police also in Yuen Long area-Ma Miu Road, Yuen Long. He told police that he got the drugs from a man in Mong Kok area early that morning around 4 a.m. If that was the case, I would expect him to go straight home first from Mong Kok rather than hanging around in the streets (he told police he was on his way to have breakfast at the time of being stopped by the officer) in Yuen Long, to stash away drugs for his consumption and then went out to traffick the rest of the drugs.

(4) The drugs in question were not packaged into two halves- for example, two lots of equal amount. The drugs were in fact put into 50 packets, and then placed in 5 re-sealable bags of 10 packets each. The whole thing was wrapped by adhesive tape in a single plastic bag which was not easily divided.

16.  Simply put, for the reason given above, I'm not prepared to accept the defendant’s claim that half of the drug was for his own consumption.

17.  As there is no further evidence, suffice it to say on the evidence before the court, I do not believe that the defendant had half of the drugs for his own consumption.

18.  Assuming the court accepts his claim for the sake of argument, I do not think that “half” would meet the requirement as stipulated by the Appellate Court in the case Liu Ming Sze CACC 314/2014, which says that it must be “a significant amount” of the drugs for self-consumption to justify a further reduction in sentence.

19.  Defence counsel relied on the case Chow Chun Sang in support of the defendant’s claim, but in a recent case Liu Ming Sze, the higher court , if I understand it correctly, has strongly suggested that Chow’s case should not be followed in the future.

20.  In paragraph 26 of the Judgment, the Appellate Court said this:

“In HKSAR v Tam Ling Yuen this court rejected the suggestion that in stating, in the judgment in Chow Chun Sang, that the suggested range of discount of sentence of 10% to 25% was applicable “when all or part” of the dangerous drugs were for self-consumption, the court “abandoned or jettisoned” the requirement that it be proved that a “significant proportion” of the dangerous drugs in which the defendant trafficked unlawfully was for self-consumption.”

21.  For the reasons given above, I would proceed to sentence the defendant for trafficking in the whole of the drugs, i.e. 5.14 grammes of heroine hydrochloride.

22.  There are sentencing guidelines for this type of offence, for trafficking in the amount up to 10 grammes, a term of 2 to 5 years is to be considered. For the amount he admitted trafficking, I take 42 months as a starting point.

23.  As far as is mitigation is concerned, apart from his guilty plea, there isn't anything of substance. Giving one-third discount for his plea, I reduce the starting point to 28 months.

24.  As there being no good reason for further reduction, the defendant is therefore sentenced to a term of 28 month imprisonment.