HKSAR v. CHENG CHUN KEI

DCCC 929/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 929 OF 2012

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Reasons for Sentence

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1.  The defendant, Cheng Chun-kei, appeared before me this morning and pleaded guilty to two counts of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap134 and also a third count of possession of dangerous drugs, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134.

2.  The subject matter of the first charge involves 10.75 grammes of a powder containing 8.79 grammes of ketamine. The subject matter of the second charge involves 25.84 grammes of a powder containing 20.45 grammes of ketamine and the subject matter of the third charge involves two different types of drugs; firstly, 0.23 grammes of cannabis in herbal form, and secondly, 1.99 grammes of a crystalline solid containing 1.94 grammes of methamphetamine hydrochloride (also commonly known as “Ice”).

The Facts

3.  The facts of the case are simple and straightforward.  It was in relation to an anti-trafficking operation mounted by a group of plain clothes officers. 

4.  On 4 July 2012, in the vicinity of Ground Floor, car park, Vita Tower, 29 Wong Chuk Hang Road, Aberdeen, Hong Kong, at about 2.00 pm the officers there saw a medium goods vehicle, (the MGV), with registration number GA 236 stopping close to the vicinity.  The defendant was the driver of the MGV at the material time and before the officers could approach the MGV, the defendant alighted suddenly from the MGV and fled. 

5.  The officers therefore gave chase of the defendant until he was intercepted.  A body search was immediately conducted and, as a result, the subject matter of the dangerous drugs in relation to Charge 1 which was contained in one plastic resalable bag was found in the left front pocket of the pair of shorts the defendant was wearing at the time of arrest.

6.  Later, in the presence of the defendant, a search of the MGV was conducted by the police.  As a result, more suspected dangerous drugs were found hidden in the sunlight shelter above the driver seat of the MGV.  Later on, a drug detective dog was also summoned by the police for assistance and more items of suspected drugs were also found near the driver’s seat of the MGV.  All these above suspected dangerous drugs formed the basis of the subject matters in relation to Charge 2 and Charge 3.

7.  The defendant was arrested and cautioned for the offence of “Trafficking in dangerous drugs” in relation to all the charges.  The defendant initially admitted that the drugs were for his own possession only and he basically maintained the same position in his subsequent police interview.

8.  He further admitted to the police that he had taken ketamine, “Ice” and cannabis for 7 to 8 years, and more significantly, as a vehicle driver, he said whenever he was tired he took “Ice” and cannabis.

9.  All the suspected dangerous drugs were subsequently examined by the Government Chemist and were certified as described in the three charges.

10.  The value of the ketamine found in relation to both charges was HK$3,567.28; the “Ice” was valued at HK$1,371.58 and the cannabis was only of a small value of HK$27.37.

11.  A cash sum of a total of HK$15,270 was found in the defendant’s possession on arrest.

Criminal Records and Background of the Defendant

12.  The defendant is 34 years old.  He is married with one child.  In the past, he had two previous criminal records with one similar “possession of dangerous drugs” record back in 2007for which he was only fined.  His parents are aged 70 and aged 60 respectively and they all live together with the defendant in a public housing estate in Wong Tai Sin. 

13.  Mr Li, his solicitor, in mitigation informed the court that the defendant was coming from a decent family background.  He is the second of his three siblings.  At the time of the offence, he was working as a driver earning a monthly salary of about $15,000 per month.  The defendant has attained an education level up to Form 2 and because he could not catch up with his studies, he quit school at the age of 16.

14.  Mr Li also submitted a number of mitigation letters.  I am not going to refer in detail the contents of those letters, suffice it to say that I was told the reason why the defendant committed the present offence is economic pressure that he faced after the son was born.  They all urged the court to be as lenient as possible.  The defendant himself also said that he was very remorseful and he promised to turn over a new leaf after he has served his time.

15.  Mr Li properly referred the court to the sentencing authority in respect of ketamine and indicated that the starting point should be between the region of 4½ years to 5 years.  He urged the court also to take a global view of all three charges and perhaps to consider passing a concurrent sentence in respect of all the charges, or at the least partly concurrent.

Sentencing Considerations

16.  Trafficking in dangerous drugs is of course a very serious offence.  Anyone who was involved in this kind of criminal activities would expect no leniency from the court.  A message has to be sent and it is important that the sentence should have deterrent effect. 

17.  Ihave much sympathy for the family members of the defendant, especially his wife who will now be shouldered with the heavy responsibility of raising the child herself. The Court of Appeal, however, had repeatedly stressed in the past in numerous authorities that family circumstances virtually play no part in mitigation.  The defendant is a mature man with family responsibilities. What he should have done was to think very carefully before deciding to take the chance and now he just has to accept what he has done as a consequence.

18.  In sentencing, I will take into account the total quantity in respect of the ketamine found both in the defendant’s person and also in the vehicle. After all, they are of the same kind of drugs, namely ketamine, and both are trafficking charges.  The total quantity of the ketamine of the first and second charges is 29.24 grammes.

19.  According to the leading authority for sentencing guidelines, Secretary for Justice vHii Siew ChengCAAR7/2006 and CACC126/2007, for trafficking in a quantity between 10 to 50 grammes, the starting point is said to be 4 to 6 years. I therefore consider the proper starting point should be one of 5 years.  The defendant has pleaded guilty and this is the only mitigating factor, he is entitled to an one-third discount.  The sentence is therefore reduced to 40 months’ imprisonment for both charges, to be served concurrently.

20.  As for the third charge, it involves two different kinds of drugs with different quantity and potency and it is only a “possession”charge only. 

21.  In respect of the cannabis, that was obviously a less serious drug in terms of potency and quantity.  In respect of the “Ice”, although the quantity is small when compared with the ketamine found in the above first two charges, this is even a moreserious type of dangerous drug than ketamine as one can see from the street values of the two drugs in terms of their quantity total value of the ketamine is.  Even for a possession charge, I cannot overlook the latent risk factor involved.

22.  In this charge, I shall disregard the presence of the cannabis.  The usual starting point for possession of “Ice” is said to be between 12 to 18 months. I shall use the lower starting point but I shall add 3 months on account of the latent risk factor.  As a result, the starting point is 15 months.  After giving the defendant also the one-third discount for his plea, the sentence was reduced  to 10 months’ imprisonment.

23.  Lastly, the totality of sentences. I have already decided that the sentences in respect of Charges 1 and 2 is 40 months’ imprisonment to run concurrently.  I cannot agree with the suggestion by Mr Li that the sentence in respect of Charge 3 would also to run concurrently. I agree, however, that at least part of the sentence in respect of Charge 3 can run concurrently.  Because of the totality principle, I finally decide that the defendant has only to serve an extra 3 months in respect of this offence.  In other words, out of the 10 months’ imprisonment, 7 months is to be run concurrently with the sentences on Charges 1 and 2, making the total sentences in respect of the three charges a total of 43 months’ imprisonment.