HKSAR v. CHEUNG WING CHIU

DCCC 841/2023

[2024] HKDC 1131

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 841 OF 2023

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REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Trafficking in dangerous drugs" (Charge 1); a charge of "Speeding" (Charge 2); and a charge of "Failure to produce proof of identity" (Charge 3). The dangerous drugs involved are ketamine and cocaine.

Summary of Facts

Charge 2

2.  About 12:17 p.m. on 20 February 2023, PC 15863 (PW1)  and teammates were conducting an anti-speeding operation at Kwai Chung Road northbound.  Using a laser gun, PW1 detected the speed of a private car VE7289 ("the Car")  travelling on the 1^st lane of Kwai Chung Road to be 87 km/h (after deducting the technical allowance of 5 km/h).  The speed limit of that road segment was 70 km/h.

Charge 3

3.  Sgt 50004 (PW3)  intercepted the Car at a police roadblock set up near Lamppost KHM186, Kwai Chung Road.  The defendant was found in the driver's seat; whereas a male surnamed Man, the front passenger seat.  PW3 asked both of them to alight from the Car.  About 12:27 p.m. on the same day, PC 10517 (PW4), at the roadblock, asked the defendant to present his identity document.  He claimed that he had lost it.

Charge 1

4.  PW4 searched the Car at the roadblock in the presence of the defendant.  The following items were found :-

(a)  In the storage compartment of the driver's door:

a cigarette box containing 4 resealable transparent plastic bags which contained a total of 2.37 grammes of a solid containing 2.02 grammes of ketamine (E1);

(b)  In the storage compartment of the driver's armrest:

(i)  8 resealable transparent plastic bags which contained a total of 0.92 gramme of a solid containing 0.79 gramme of cocaine (E2); and

(ii)  a chewing gum packet containing 31 resealable transparent plastic bags which contained a total of 4.58 grammes of a solid containing 3.80 grammes of cocaine (E3).

5.  At the roadblock, PW4 arrested the defendant for the 3 offences in the present case.

6.  In his video recorded interview, the defendant stated that he borrowed the Car from a Mr. Poon on 18 February 2023.  The defendant admitted that the dangerous drugs found in the Car were cocaine; and they belonged to him.  The cash (in a total sum of $2,304.50)  found in the Car and on the defendant as well as the 2 mobile phones found also belonged to him.

7.  Regarding Charge 1, the defendant now admits that he possessed E1 to E3 for the purpose of unlawful trafficking.

Mitigation & Sentence

8.  The defendant is 46 and has 7 conviction records, which included 1 "simple possession" offence and 4 driving-related offences.  Defence counsel Mr. Ho informed me that the defendant is divorced with 2 children (aged 17 and 12).  He resides with his mother (aged 82).  The defendant was a construction worker earning about $28,000 per month.  In mitigation, Mr. Ho submitted that the defendant's last conviction is dated November 2011, which shows that he has managed to remain trouble free for quite some time.  Furthermore, the defendant has no record of "trafficking"; this is his first time and he promises not to re-offend.

9.  Drug abuse has always been a problem in our society.  A clear message must be conveyed to the general public that "drug trafficking" is a serious crime and that drug traffickers (even fresh offenders)  would most certainly be punished by long-term imprisonment, so that there is a deterrent effect.

10.  The Court of Appeal has laid down clear sentencing guidelines for trafficking in ketamine (see SJ v Hii Siew Cheng [2009] 1 HKLRD 1)  and cocaine (see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 and The Queen v Lau Tak Ming & others [1990] 2 HKLR 370).  For up to 10 grammes of ketamine, the sentence ranges from 2 to 4 years' imprisonment.  For up to 10 grammes of cocaine, it ranges from 2 to 5 years' imprisonment.

11.  In determining the proper starting point for Charge 1, I have reminded myself of the sentencing principles for trafficking in cocktail drugs stated in HKSAR v Yip Wai Yin & another CACC 80/2003 and HKSAR v Cheng Yat Ming CACC 455/2006.

12.  In the present case, the defendant trafficked in a cocktail of drugs consisting of 2.02 grammes of ketamine and 4.59 grammes of cocaine.  For 2.02 grammes of ketamine, applying a strict arithmetical approach, the appropriate starting point is 27 months' imprisonment.  For 4.59 grammes of cocaine, applying a strict arithmetical approach, the appropriate starting point is 41 months' imprisonment.  I consider the "combined approach" would arrive at a realistic and fair sentence. 

13.  In terms of potency, 4.59 grammes of cocaine should form the basis of the starting point.  Hence, I adopt a starting point of 41 months' imprisonment and adjust it upward by 4 months for the ketamine, arriving at 45 months.  With the timely guilty plea, the sentence is reduced to 30 months.   Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 30 months' imprisonment for Charge 1.

14.  For Charge 2, the defendant drove the Car at 87 km/h when the speed limit was 70 km/h.  He exceeded the speed limit by more than 15 km/h.  If caught at speeding by a laser gun, the driver would normally be issued a fixed penalty ticket for $450[2].  This is exactly what the defendant did.  I will fine him $450 for this charge.

15.  For Charge 3, I do not understand why the defendant was charged under the Public Order Ordinance instead of the Immigration Ordinance[3], which only carries a maximum fine of $5,000.  He did not deliberately refuse to produce his identity card; he simply did not have it with him.  Charging the defendant under the Public Order Ordinance seems to be out of proportion.  I will fine him $500 for this charge.

16.  For the fines in respect of Charges 2 and 3, I understand that the defendant has sufficient cash in his prisoner's parcel.  I will allow him 1 month to pay, which should be sufficient time for him to go through the formalities with the assistance of his welfare officer.