HKSAR v. CHENG CHUN KIT

HCCC 160/2019

[2020] HKCFI 291

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 160 OF 2019

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT:

The defendant has pleaded guilty in the Magistrates’ Court to two counts of trafficking in a dangerous drug. On the 1st count, he has pleaded guilty to trafficking in 68.9 grammes of a crystalline solid containing 67.1 grammes of methamphetamine hydrochloride and 55.2 grammes of a solid containing 29.8 grammes of ketamine.

On the 2nd count, the drugs are namely 229.4 grammes of a crystalline solid containing 224.1 grammes of methamphetamine hydrochloride; 189.7 grammes of a solid containing 108.31 grammes of ketamine; and 116 grammes of a solid containing 88.3 grammes of cocaine.

On the night of the offence the defendant was seen at around 11.13 pm on Fai Ming Road looking nervous and therefore the police officers intercepted him and conducted a search on him and in his right front trouser pocket were found the drugs in Charge 1. What is interesting is that the drugs were packaged in separate plastic bags and were kept in his pocket. There were a total of separate packets of 16 plastic bags. Upon being arrested and cautioned the defendant said that the ‘Ice’ and the K-chai was for his own consumption and that there were still several bags at his home.

Police subsequently conducted a search at the defendant’s residence and the drugs, the subject matter of Count 2, were found. Apart from the drugs that were found, there was also found an electric scale and transparent resealable plastic bags, and importantly, also a sealing machine. So obviously packaging was being done.

The drugs found were kept in a black plastic box and the drugs were contained in 48 different bags of ‘Ice’, 50 bags of ketamine and 50 bags of cocaine. Also found was an ‘Ice’ pot which the defendant said was for him to inhale drugs.

The defendant, in a video-recorded interview, said that the sealing machine was for packing dangerous drugs. He also said that the drugs found in his bedroom at his home were for his own consumption. When he was further asked what type of drugs he would take and his average usage of drugs, he said he would not answer. The total value of the drugs seized amounted to about HK$430,451.

The defendant is aged 27 now and he has four previous convictions, two of which are drug-related. Mr Tang has made a detailed written submission in relation to the sentencing aspect and I accept his submission that it should be the combined approach in this case.

Also Mr Tang has submitted that the defendant was facing financial difficulties and wanted to make quick money, and that the defendant had, when he was arrested on the street, confessed to the police there were still more drugs at home and which is a sign, an indication of his remorse.

Mr Tang submitted that the defendant claims that he is a regular consumer of drugs except for ketamine. I had informed Mr Tang that I am not prepared to consider that a large amount of those drugs seized were for his own consumption, except for perhaps a very minimal amount and that the defence is entitled to call evidence on that point if they so wish. The defence has declined the invitation.

Now, considering the amounts of drugs in both counts, in relation to the 1st count there was 67.1 grammes of methamphetamine hydrochloride and 29.8 grammes of ketamine. And combining the two amounts together would give us a quantity of 96.9 grammes of drugs. Because the methamphetamine hydrochloride is the larger amount, I will take the sentencing guidelines for methamphetamine hydrochloride as recommended in the case of Tam Yi Chun. This was a case in 2014, reported at 3 HKLRD 691, where the Court of Appeal recommended that for trafficking in between 70 to 300 grammes of methamphetamine will normally call for a sentence of between 11 to 15 years’ imprisonment after trial.

The amount in the 1st count being 96.9 grammes, I would consider that a starting point sentence of between 11 to 11½ years will be appropriate. Taking into account that perhaps he may be tempted to take a bit of that for his own consumption, I will take a starting point of 11 years. Giving the defendant the full one-third discount for his early plea and remorse will reduce the sentence on Count 1 to 7 years and 4 months.

Now, in relation to the 2nd count, it involves 224.1 grammes of methamphetamine hydrochloride, 108.3 grammes of ketamine and 88.3 grammes of cocaine. So the total amount of drugs if added together would be in the region of 420.7 grammes. As I have said, I will accept that this should be the combined approach and methamphetamine hydrochloride being of the larger quantity, I will follow the guidelines laid down in Tam Yi Chun’s case. The guidelines being that for trafficking in between 300 to 600 grammes would merit a starting point sentence of 15 to 20 years’ imprisonment. Taking into account that the total drug in this case is 420.7 grammes, that would merit a starting point of between 15 to 15½ years.

As in the previous count, I will take the lower starting point of 15 years’ imprisonment to take into account the fact that he may be tempted to use a little part of those drugs for his own consumption. Giving the defendant the full one-third discount will give a sentence of 10 years’ imprisonment.

Now, I have to consider the totality principle. So taking into account that principle, on the 1st count the defendant is sentenced to 7 years and 4 months, and on the 2nd count the 10 years’ imprisonment, 4 years will be consecutive to the 1st count and the rest will be concurrent, giving a total sentence of 11 years and 4 months.