HKSAR v. CHENG CHI SHING

DCCC 451/2021

[2021] HKDC 999

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 451 OF 2021

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REASONS FOR SENTENCE

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The defendant pleaded guilty to a charge of "Trafficking in a dangerous drug". The dangerous drug involved is cocaine.

Summary of Facts

2.  About 3:40 a.m. on 27 January 2021, police officers stopped the defendant for enquiry outside No.607 Nathan Road in Mongkok.

3.  Upon search, the Police found in his right jacket pocket 5 transparent resealable plastic bags wrapped in a piece of tissue paper; they contained a total of 0.75 gramme of a solid containing 0.68 gramme of cocaine.  The Police also noticed a bulge in the defendant's crotch.  He was taken on board of a police van to be searched further. 

4.  A transparent resealable plastic bag containing 56 resealable plastic bags which contained a total of 8.83 grammes of a solid containing 7.99 grammes of cocaine was found inside the defendant's underpants.  In his left sock, a transparent resealable plastic bag wrapped in a piece of tissue paper was found; it contained 0.16 gramme of a solid containing 0.14 gramme of cocaine.

5.  Under caution, the defendant said "Ah Sir, I have received $500 from someone to deliver cocaine.  I have not received the money yet.  Give me a chance."

6.  In his video recorded interview, the defendant admitted that he had been trafficking in cocaine since 21 January 2021.  He would receive WhatsApp messages from unknown persons regarding the locations of pick-up and delivery.  He would sell each packet of cocaine at $400, and would receive $50 as his reward.  He would place the proceeds of sale (in cash)  in the bushes at Garden Rivera, Shatin; the dealers would then pick up the money.  The defendant had never met the dealers.  For any unsold drugs, he would return them to the distributor.  The defendant claimed that he was on his way to deliver 5 packets of cocaine when he was arrested.  The cash found on him was not related to drug trafficking.

Mitigation & Sentence

7.  The defendant is 26 and single.  He has 3 conviction records, which included 2 "trafficking" offences (in the same case).  For those 2 offences, he was sentenced to a total of 7 years and 4 months' imprisonment in March 2016.  He was discharged in May 2020.

8.  Defence counsel Mr. Ho informed me that the defendant has 2 daughters (aged 9 and 7)  with his ex-girlfriend. The 2 girls reside with their mother but the defendant contributed $6,000 each month to support them.  He also contributed $2,000 each month to support his grandmother, with whom he resides.

9.  In mitigation, Mr. Ho submitted that prior to the present offence, the defendant was laid off from his job at a frozen warehouse.  He foolishly followed a friend's advice to earn quick money by trafficking in dangerous drugs.  Letters written by the defendant and his grandmother were placed before me; their contents are duly noted.

10.  Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious)  is no mitigating factor for committing a crime.  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 would most certainly be punished by long-term imprisonment.

11.  The Court of Appeal has laid down clear sentencing guidelines for trafficking in 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, the sentence ranges from 2 to 5 years' imprisonment.  The defendant trafficked in 8.81 grammes.  Applying a strict arithmetical approach, the appropriate starting point is 4 years and 8 months.

12.  The defendant is not a fresh offender of drug trafficking offences.  He re-offended in just 8 months after being released from prison.  His sentence in the present case needs to be enhanced so that there is a deterrent effect.  I adopt a starting point of 5 years' imprisonment.  With the timely guilty plea, the sentence is reduced to 40 months.   Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 40 months' imprisonment.