COURT: The defendant, Cheung Ka-chi, pleaded guilty in the Eastern Magistrates’ Court on 14 March this year to two charges of trafficking in a dangerous drug, Charges 1 and 2, and he was committed to the Court of First Instance for sentence.
The 1st charge alleges that on 16 February 2023, at East Tsim Sha Tsui MTR station near Exit N5, Tsim Sha Tsui, Kowloon, in Hong Kong, the defendant unlawfully trafficked in 13.6 grammes of a crystalline solid containing 13.5 grammes of methamphetamine hydrochloride. The 2nd charge alleges that on 17 February 2023, at Room 1307, Imperial Hotel, Nos. 32-34 Nathan Road, Tsim Sha Tsui, Kowloon, in Hong Kong, the defendant unlawfully trafficked in 16.38 grammes of a crystalline solid containing 16.25 grammes of methamphetamine hydrochloride.
He comes before me this morning for sentence, having confirmed his plea and admission of the Summary of Facts.
The Facts
The Summary of Facts reveals that at around 5.17 pm on 16 February 2023, the defendant was intercepted by the police officers inside the Tsim Sha Tsui MTR station when he was found to be acting furtively. Upon the search of the defendant, one packet of suspected dangerous drugs (P1), the subject matter of Charge 1, was found in the left pocket of the defendant’s blue jacket that he was wearing. The defendant also at that time had two mobile phones, three hotel room cards, and cash of $4,110 with him at the time of the arrest.
Under caution at the scene, the defendant claimed that the dangerous drug was for his consumption. Further enquiry revealed that the defendant resided at Room 1307 of the Imperial Hotel. Police later escorted the defendant to the hotel room and conducted a search there with the consent of the defendant.
Upon search and in the defendant’s presence, the police found another plastic bag on the table, containing four transparent resealable plastic bags containing suspected dangerous drugs (P2), the subject matter of Charge 2, cash of $8,200 and also a digital scale, which is a common packing paraphernalia.
Under further caution during a recorded interview, the defendant said that he bought the dangerous drug from an unknown seller for his own self-consumption, and the digital scale was used to weigh the dangerous drugs as he did not want to be deceived by his seller.
The government chemist examined and certified that the suspected dangerous drug found in the two plastic bags were indeed methamphetamine hydrochloride or what is more commonly known as ‘Ice’, and the quantity was exactly as particularised in the two charges.
The total estimated street value of ‘Ice’ seized in this case was around $14,571.
Mitigation
The defendant is 41 years of age and is still single. He was born and raised in Hong Kong. He was unemployed before the arrest and he was educated up to Form 5 level. Previously he worked as a cleaner. He has 18 criminal records of which nine were drugs related but there is no similar trafficking record.
Mr Hui, counsel for the defendant, explained that the defendant committed these two offences for earning quick
money during the COVID period. He lost his job as a cleaner and in the letter of mitigation, the defendant described how he regretted committing the present offences due to his own immaturity and stupidity. He writes that he recognises the mistakes he has made and now realises the seriousness of his conduct to which he has pleaded guilty. He expresses deep remorse and he is keen to reform and turn over a new leaf. He wants to support his old aged parents and reduce their financial burden when he is discharged from prison.
Sentencing Principles and Tariffs
Now, in this case the defendant pleaded guilty and was convicted on two trafficking charges. He was first arrested in the MTR station where a plastic bag of ‘Ice’ was found on his person and he was later brought back to his hotel room by the police where four other plastic bags of similar quantity of ‘Ice’ were also found on the table inside the room. In such circumstances, I consider that the concurrent sentences for the two charges is appropriate. In HKSAR v Chong Cho Kit, CACC 363/2005 (unrep., 12 July 2006), the Court of Appeal had said in paragraph 14 that:
“It is only in respect of trafficking offences that arose from the same incident that the aggregated total amount of drugs would be taken for fixing the starting point...The rationale behind is obvious because it would be unfair, for example, to treat two lots of drugs, one lot found on the accused...and the other lot found in his home when he was brought back to his home for a search immediately thereafter, as separate and distinct lots when considering sentence...”
Now, based on the purity and the packaging of the drugs seized in this case, apart from the three smaller packets found in his hotel room, it is clear that the two larger or bigger plastic bags are of the same origin. Mr Hui emphasised in his mitigation that the three smaller packets of ‘Ice’ in the total quantity of 2.95 grammes were also taken from the larger packets and those were indeed for the defendant’s own consumption. Now, there is nothing from the prosecution to challenge this assertion and therefore, I think it is only fair that the five plastic bags of ‘Ice’ altogether should be added for fixing a global starting point for both charges.
Based on the facts of this case, I am satisfied that both Charge 1 and Charge 2 arose from the same course of the criminal conduct and hence I would agree with the submission to impose concurrent sentences.
It is well established that trafficking in a dangerous drug is of course a very serious offence. In the Court of Appeal
case of Herry Jane Yusuph [2021] 1 HKLRD 290, Macrae VP reaffirmed that for this offence, personal circumstances were of far less importance than the sentencing principles of denunciation, deterrence, and punishment. In sentencing, I shall follow the six-step approach as mentioned in that case.
The first step is to assess the gravity of the offence. The total narcotic content of ‘Ice’ involved in this case in respect of both charges is 29.75 grammes (i.e. 13.5 grammes plus 16.25 grammes). In HKSAR v Tam Yi Chun, CACC 524/2011, the Court of Appeal stated that trafficking in between 10 and 70 grammes of ‘Ice’ would attract a starting point of 7 to 11 years of imprisonment. Therefore, for 29.75 grammes, the starting point is 8.3 years or 8 years and 4 months.
The second step is to assess the defendant’s role and culpability based upon the evidence. As was held in Herry Jane Yusuph (at paragraph 59):
“The guidelines for trafficking in dangerous drugs are based upon the courier or storekeeper; that is the person who is delivering, distributing or conveying the drugs in question for a dealer; or storing the consignment of drugs on behalf of himself or someone else.”
Consequently, it would not be possible to properly apply the guidelines until the court takes a view of the role and culpability of the defendant.
The assessment made in the second step is also relevant in determining where within the band or outside the band the defendant comes. The Court of Appeal reaffirmed that the bands were for the least culpable of drug traffickers, namely, the courier or the storekeeper.
The third step is to identify where in the relevant band the defendant comes, bearing in mind it might be necessary to go outside the band whether above or below given the circumstances of the offence and the role of the defendant. Mr Hui in this case urged me to accept that the defendant’s role and culpability is merely a courier or a storekeeper. By his own admission to the police, the defendant firstly admitted that he bought the drugs to consume and during mitigation, he now admitted that he was recruited to deliver the drugs for financial rewards as well as for his own consumption. This claim was also supported by the presence of amphetamine in the urine test conducted by the Correctional Services Department and also the defendant’s own numerous past possession of dangerous drugs records. Also there is nothing to counter this assertion and I shall treat him as a courier or a storekeeper in this case.
In determining the appropriate overall starting point, I take into account the role and culpability played by the defendant. Finally, I consider that an overall starting point of 8 years and 4 months’ imprisonment in respect of both charges is appropriate.
The fourth step requires me to consider whether there are any aggravating factors which may require me to enhance this starting point. In my judgment, there is no other aggravating factor.
Fifthly, I am required to have regard to all mitigating factors. As the Court of Appeal made it clear in Herry Jane Yusuph (Supra.), in cases of trafficking in a dangerous drug, personal circumstances will count for little unless they are very exceptional. Apart from the defendant’s timely and early plea of guilty at the committal stage, the defendant also asked for a further reduction for a few months based on his claims for self-consumption in relation to those three smaller packets found inside the hotel room.
As I already mentioned, this claim, although not based on a significant portion, is to some extent supported by the positive result of the urine test and the defendant’s own past criminal records.
The defendant is of course entitled to the usual one-third reduction of sentence on account of his plea. But before that, I shall also exercise my discretion to further reduce the overall starting point by 4 months to 8 years’ imprisonment for his claim on self-consumption of those three smaller packets of ‘Ice’.
After the one-third discount in sentence, the final resulting sentence is one of 5 years and 4 months’ imprisonment.
The sixth and final step is to stand back and look at the overall sentence in order to ensure that it is a fair, just, and balanced sentence in all the circumstances of the offence and the offender. In my judgment, the resulting sentence that I have mentioned is exactly such a sentence.
For Charge 1, I shall impose a sentence of 5 years and 4 months’ imprisonment. For Charge 2, I shall also impose a sentence of 5 years and 4 months’ imprisonment. Both sentences shall run concurrently.