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DCCC 452/2025
[2025] HKDC 2034
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 452 OF 2025
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HKSAR |
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CHUI NGAN KAM |
(1st defendant) |
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POON YIP CHOI |
(2nd defendant) |
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| Before: |
HH Judge Kathie Cheung |
| Present: |
Mr. Jeff HO, Counsel-on-fiat, for HKSAR |
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Ms. Stephanie KO, instructed by Mike So, Joseph Lau & Co., assigned by DLA, for the 1st defendant |
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Mr. BUT Sun Wai, instructed by Messrs Tang, Wong & Chow, assigned by DLA, for the 2nd defendant |
| Offences: |
[1] Trafficking in a dangerous drug (販運危險藥物)- against 1st defendant |
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[2] Trafficking in dangerous drugs(販運危險藥物)- against 2nd defendant |
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[3] Using an identity card relating to another person (使用他 人的身分證)- against 2nd defendant |
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REASONS FOR SENTENCE
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1. This case involves 2 defendants. The 1st defendant pleaded guilty to one count of trafficking in a dangerous drugs[1] (Charge 1). The 2nd defendant pleaded guilty to one count of trafficking in dangerous drugs[2] (Charge 2) and one count of using an identity card relating to another person[3] (Charge 3).
Facts
2. At about 0005 hours on 26 June 2024, police found the two defendants acting furtively at San Fung Avenue, Sheung Shui and intercepted them for inquiry.
3. Upon search, a transparent resealable plastic bag containing 5.51 grammes of cocaine (Exhibit 1) was found in the 1st defendant’s left front trousers pocket. Under caution, the 1st defendant admitted that Exhibit 1 was cocaine, which he purchased from an unknown male at the price of $500 the day before. He stated that the drug was for self-consumption (Charge 1).
4. During enquiry, the 2nd defendant produced a Hong Kong Identity Card bearing the name of a male named Hao Liyun (Exhibit 4) as proof of identity. Upon search, the following items were found in the 2nd defendant’s cross-body bag, namely, a plastic bag containing 6.31 grammes of methamphetamine hydrochloride (ICE) (Exhibit 2), a plastic bag containing 1.88 grammes of cocaine (Exhibit 3), 33 transparent resealable plastic bags and cash in the sum of $15,060 (Charge 2).
5. Under caution, the 2nd defendant admitted that Exhibits 2 and 3 were ICE and cocaine respectively, which he purchased from an unknown male at the price of $400 and a few hundred dollars respectively in Shatin for the purpose of self-consumption.
6. Subsequently, it was found that the ID card produced by the 2nd defendant was reported missing on 6 May 2024 (Charge 3).
7. In subsequent video-recorded interviews, the 1st defendant stated under caution that he purchased Exhibit 1 from a friend at a shopping mall in Shatin at the price of $5,000 for self-consumption on 25 June 2024; he became acquainted with the 2nd defendant via a common friend; he met the 2nd defendant on the street in Shatin on 25 June 2024 after he purchased Exhibit 1 and the 2nd defendant offered to give him a ride to Sheung Shui.
8. In subsequent video-recorded interviews, the 2nd defendant stated under caution that the cross-body bag and the items found therein did not belong to him but in fact belonged to the 1st defendant; he became acquainted with the 1st defendant via a common friend; he offered the 1st defendant a ride to Sheung Shui; he admitted purchasing the ID card and driving licence belonging to Hao Liyun at the price of $1,000 from a female friend.
9. The street value of Exhibits 1 to 3 is around $4,700, $3,000 and $1,600 respectively.
The 1st defendant’s mitigation
10. The 1st defendant is aged 48, divorced and lived alone. He has a son. Prior to the arrest, he worked as a transportation worker earning about $20,000 per month. He has 6 previous conviction records, 4 relating to possession of dangerous drugs.
11. The quantity of drug involved is 5.51g of cocaine. With reference to the sentencing guidelines, it was suggested that the starting point would be around 3 years 8 months. It was submitted that about 1/3 (about 1.8 grammes) of the drug was intended for self-consumption and this Court was urged to grant a reduction from the starting point for self-consumption[4].
12. It was also submitted the 1st defendant’s plea shows his remorse and he has been remanded in custody since 26 June 2024. This Court was urged to impose a lenient sentence on the 1st defendant.
The 2nd defendant’s mitigation
13. The 2nd Defendant is aged 61, divorced and lived with his elder brother. He has one son and one daughter and both of them have their own family. Prior to his arrest, he worked as a driver earning about $15,000-20,000 per month. He has 6 previous conviction records, 2 relating to possession of dangerous drugs.
14. The 2nd defendant’s role in Charge 2 was a delivery worker only, he would be paid a few hundred dollars after the delivery. Before that, he met the 1st defendant by chance in Shatin and gave the 1st defendant a ride to Sheung Shui.
15. For Charge 2, given multiple drugs are involved, it was submitted that this Court should adopt the combined approach when sentencing. Referring to the methodology set out by the Court of Appeal[5], it was submitted that the starting point should be about 66 months.
16. The defence acknowledged trafficking in more than 1 drug is an aggravating factor that may lead to upward adjustment of the starting point. The defence also confirmed that the 2nd defendant committed the present offences while on bail for another case and understood this amounted to an aggravating factor.
17. Regarding Charge 3, a few days prior to the offence, the 2nd defendant found Exhibit 4 abandoned on the street in Sheung Shui. He kept it and did not bring to a police station. On the offence date, he happened to have left his own ID card at home. Upon the arresting officer’s demand for his identity, he foolishly produced Exhibit 4. It was submitted that the sentence after plea should be around 12-15 months.
18. Finally, it was submitted that the 2nd defendant deeply regretted for his wrongdoings and had shown genuine remorse. This Court was urged to consider the principle of totality in respect of the 2nd defendant.
Sentence of the 1st defendant
19. The 1st defendant faces one count of trafficking in 5.51 grammes of cocaine (Charge 1). He has 4 previous convictions relating to possession of dangerous drugs. Since he has no previous conviction for trafficking in dangerous drugs, I will not consider his previous conviction records when sentencing.
20. For Charge 1, the drug involved is 5.51 grammes of cocaine. According to the sentencing guidelines[6], I agree with counsel that the appropriate starting point should be 44 months’imprisonment.
21. Regarding the claim for self-consumption, I have reminded myself the relevant principles in HKSAR v Wong Suet Hau & anor [2002] 1 HKLRD 69 and HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121. In the former case, it was held by the Court of Appeal that where it was accepted that a significant proportion of the drugs were for the defendant’s own consumption, the court should adjust the sentence to reflect the fact that not all the drugs were for trafficking. However, it was not necessary for the sentencing judge to specify the relative amounts or proportions. In the latter case, the Court of Appeal held that a discount between 10% and 25% from the basic starting point would be appropriate in cases where all or a significant proportion of the drugs were intended for trafficker’s own consumption. The previous conviction records of the 1st defendant support the allegation that he is a drug addict. In the present case, there is no evidence to rebut the allegation of self-consumption. One-third of the drug has been accepted as a significant proportion qualifying for a discount in the starting point[7]. In the circumstances, I am prepared to accept that a substantial part of the drug was for his own consumption and therefore reduce the starting point by 5 months to reflect the discount for self-consumption. The starting point is therefore reduced to 39 months’ imprisonment.
22. Apart from the claim for self-consumption and the 1st defendant’s guilty plea, there is no other valid mitigating factor justifying further reduction of the sentence. For the plea, the sentence is therefore reduced to 26 months’ imprisonment. The 1st defendant is therefore sentenced to 26 months’ imprisonment.
Sentence of the 2nd defendant
23. Although the 2nd defendant has 2 previous convictions relating to possession of dangerous drugs, he has no previous conviction for trafficking in dangerous drugs. So I will not consider these records when sentencing.
24. On the other hand, as the 2nd defendant committed the present offences while on bail for another matter, this is an aggravating feature justifying upward adjustment of sentence.
25. The 2nd defendant faces 2 charges, namely one count of trafficking in 6.31 grammes of ICE and 1.88 grammes of cocaine (Charge 2) and one count of using an ID card relating to another person (Charge 3).
26. For Charge 2, given multiple drugs are involved, I agree with counsel that the combined approach should be adopted. With reference to the methodology set out by the Court of Appeal[8], ICE should be used as a base drug in the calculation of the starting point. According to the sentencing guidelines[9], the base of the starting point for 6.31 grammes of ICE should be 66 months’imprisonment.
27. Given the sentencing guidelines and the related ranges of sentence of ICE and cocaine are different, I have to consider the results of the absurdity test, the conversion test and the ratio test when determining a reasonable and realistic increase to the starting point of 66 months. Having considered those tests[10], I come to the view that it is appropriate to increase the starting point of 66 months’imprisonment by 1 month to 67 months’ imprisonment.
28. Given the 2nd defendant trafficked in 2 types of drugs, the starting point should be enhanced by 2 months to 69 months’ imprisonment. The starting point is further enhanced by 3 months to 72 months for commission of the offence while on bail.
29. Apart from the 2nd defendant’s guilty plea, there is no other mitigating factor justifying further reduction in sentence. Given his plea, the sentence for Charge 2 is reduced to 48 months’ imprisonment.
30. For Charge 3, according to the authorities[11], the sentence after plea for using an ID card relating to another person is 15 months’ imprisonment, meaning a starting point of 22.5 months. In the present case, I will adopt the same starting point of 22.5 months. Again, this is to be enhanced by 3 months for commission of the offence while on bail. Apart from his guilty plea, there is no other valid mitigating factor justifying further reduction in sentence. Given the 2nd defendant’s plea, the sentence for Charge 3 is reduced to 17 months’ imprisonment.
31. Having considered the totality principle and given the two offences are of different nature, 4 months of the sentence for Charge 3 is to run consecutively to the sentence for Charge 2, making a total sentence of 52 months’ imprisonment. The 2nd defendant is therefore sentenced to a total of 52 months’ imprisonment.
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( Kathie Cheung ) |
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District Judge |
[1] contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134
[2] contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134
[3] contrary to section 7A(1A) of the Registration of Persons Ordinance, Cap. 177
[4] HKSAR v Wong Suet Hau & Another [2002] 1 HKLRD 69
[5] HKSAR v Islam S M Majharul [2020] 3 HKLRD 146
[6] R v Lau Tak Ming [1990] 2 HKLR 370 as modified by HKSAR v Abdallah [2009] 2 HKLRD 437
[7] HKSAR v Choi Chun Wo CACC 273/2017
[8] Islam SM Majharul case, paragraph 27
[9] For guidelines on ICE, see AG v Ching Kwok Hung [1991] 2 HKLR 125 and HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. For guidelines on cocaine, see footnote 6 above.
[10] For the absurdity test, it is 75 months’ imprisonment if the total quantity is ICE. The conversion test based on cocaine sentencing guidelines is 67 months’ imprisonment, and on the ICE sentencing guidelines is 66 months’ imprisonment. The ratio test is 69 months’ imprisonment.
[11] HKSAR v Fan King Lam CACC 220/2010 and HKSAR v Tran Viet Thanh CACC 54/2011
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