HKSAR v. KWONG TAK CHEONG

DCCC 131/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 131 OF 2004

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REASONS FOR SENTENCE

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Charges

1.  The defendant pleaded guilty to one charge of trafficking in dangerous drugs and one charge of failing to surrender to custody.

Fact

2.  As a matter of fact, on the day in year 2003, police raided the defendant’s home and in his presence found therein the following drugs along with weighing equipment and packaging materials:-

(a) 141.12 grammes of a powder containing 101.89 grammes of ketamine;

(b) 253 tablets containing a total of:-

(1) 0.68 gramme of methamphetamine (“Ice”);

(2) 9.43 grammes of 3,4-methylenedioxyamphetmaine (“MDA”);

(3) 4.39 grammes of 3,4-methylenedioxymethamphetamine (“MDMA”);

(c) 0.78 gramme of a solid containing 0.64 gramme of N,N-dimethylamphetamine (“NNDMA”).

3.  The defendant was immediately arrested by the police and was taken to court.  Bail was all along granted to him.  Because he pleaded not guilty, trial was scheduled for next year in year 2004 in June at District Court.

4.  A few days before the trial, defendant left Hong Kong and went to mainland China.  He only came back after 12 full years in year 2016 in November.  He surrendered himself to the checkpoint immigration officer and was soon brought to court.  He indicated that he would plead guilty and he did it before me.

Mitigation

5.  Defendant is now 52 years old.  He is divorced.  He has no children.  He used to work in a factory in Hong Kong before he went to China. 

6.  Defendant is a recidivist.  Before he went to China, he already had 16 previous convictions with five for simple possession of dangerous drugs.  He also had one trafficking in dangerous drugs conviction: it was in year 1998 when he was sentenced by the High Court to 6 years’ imprisonment.  In year 2002 he was released from prison.  It was the next year, year 2003, that he committed the present (same) offence. 

7.  Because of no documentary proof, defendant testified in court to explain why he was in the mainland for 12 years.  He said that he did not mean to avoid the trial, he just wanted to relax himself in the mainland before he knew he was to face the reality to serve a sentence in Hong Kong.  However, he mingled with some undesirable peers there where he ended up being detained by the mainland police for two months.  After being released in August in year 2004, he suffered from hepatitis C and he wanted to stay in the mainland to have it fully cured before he came back to Hong Kong to prison.  Curing lasted for more than a year and in the meantime he had to work there.  Up to March in year 2006, he finally made up his mind, he crossed the border to come back to Hong Kong. However, he was stopped by the mainland Customs and Excise and was charged with a smuggling offence which allegedly took place earlier in the same year.  He had to serve 10 years there.  After being released from prison in October, year 2016, he arranged some travel document and came back in November.

Evaluation of his evidence

8.  The prosecution did not challenge the defendant’s evidence at all.  As a result, I accept his evidence in full.  Nevertheless, his preference to medical treatment in the mainland over Hong Kong is not at all an acceptable reason. He in effect chose to stay away in defiance of the Hong Kong case, at least for the whole year, year 2005.  In addition, the next 10 years’ mishap must have been the voluntary choice of the defendant.  He knew he had a case in Hong Kong, he allowed himself to be the subject of the apparently serious smuggling case, he must have expected the result of his action.  In the unfavourable turn of events, he would be put behind bars and longer it will become the time for him to come back to Hong Kong to our jurisdiction.  All it shows that he did not care less about the case here.  It is just as bad as voluntary absence for the whole straight 12 years.   This court sees the defendant chose to stay in the mainland for the 12 years in defiance of the Hong Kong jurisdiction.  Despite this, he did voluntarily surrender to Hong Kong authority eventually.  His eventual surrender is to be encouraged and shall be reflected in the sentence.

Trafficking in cocktail drugs: Charge 1

9.  The combined approach is adopted.  At the same time, three tests (absurdity, conversion, ratio) of Chan Yuk Leong CACC 318/2013, will be used to check the accuracy of the resultant figure.  Chan’s case is a new authority, it did not exist in year 2003.  But what it does is not changing the law, it only recommends some good practice and safe procedure. 

10.  To recap, the drugs are of five types, namely ketamine, MDA, MDMA, NNDMA and Ice.

11.  According to the prevailing authorities in year 2003, the first three types are subject to the Lee Tak Kwan [1998] 2 HKLRD tariff.  The fourth type of NNDMA which is generally regarded as fake Ice and is of much lower potency than Ice should in this case be conveniently grouped under the Lee Tak Kwan category.  After all, there was less than 1 gramme of this type here.

12.  With four types being grouped together, hereinafter called the MD group, the remaining type which is of the highest potency is Ice.  Ice shall stand alone as a group by itself in the assessment.  The tariff authority is Ching Kwok Hung [1991] HKLR 125 which states that trafficking in:-

(1) up to 10 grammes: 3 to 7 years’ imprisonment;

(2) 10 to 70 grammes: 7 to 10 years’ imprisonment;

(3) 70 to 300 grammes: 10 to 14 years’ imprisonment.

13.  Lee Tak Kwan, the MD group, states that trafficking in:-

(1) up to 25 grammes: discretion of the court;

(2) 25 to 400 grammes: 2 to 4 years;

(3) 400 to 800 grammes: 4 to 8 years.

14.  The MD group here weighs apparently 116 grammes (101.89 + 9.43 + 4.39 + 0.64) and it should itself carry 30 months’ imprisonment, whereas Ice which weighs 0.68 grammes should carry about 3 years’ imprisonment. 

15.  This court is minded to adopt 39 months’ imprisonment as the starting point for the whole trafficking charge.  Three tests are performed now to check this accuracy. 

Absurdity test

16.  If all five quantities totalled 117 grammes were Ice (the most potent or severe drugs), the resultant figure would be around 10 years and 8 months imprisonment (128 months). 

Conversion test

17.  Appropriate to the drug quantity in this case, I pick 3 years’ imprisonment as the benchmark.  To result in 3 years’ imprisonment, the Ice quantity alone should weigh around 1 gramme.  Likewise, to result in 3 years’ imprisonment, the MD drugs should weigh around 210 grammes.  The conversion ratio is thus 1:210.

18.  Applying this conversion ratio (210), the present 0.68 grammes of Ice is converted into the hypothetical 142 grammes of MD; the present 116 grammes of MD is converted into the hypothetical 0.55 grammes of Ice.

19.  For MD, 258 grammes (142 + 116) results in about 38 months’ imprisonment.  For Ice, 1.23 grammes (0.55 + 0.68) results in around 38 months’ imprisonment.

Ratio test

20.  

Types (groups) of drugs	Assuming all 117 grammes of a single drug, imprisonment	Ratio	Approximate imprisonment term
ICE	128 months	0.68 ÷ 117 = 0.006	1 month
MD	30 months	116 ÷ 117 = 0.994	30 months
		Total	31 months

21.  Having been checked with the three tests, the 39 months’ starting point is not out of line and is formally adopted now.  The fact that there were five types of drugs involved in this case is an aggravating feature, thus the 39 months is enhanced by 5 months to 44 months. 

Guilty plea discount

22.  Chow Tak Fuk CACC 428/2004 is considered.  There, the defendant was afforded only one-fourth discount to his guilty plea to the trafficking charge as opposed to the usual one-third discount because he had absconded for 10 years.  However, 9 months’ deduction was given to his eventual voluntary surrender to the authority.  He was sentenced to 15 years’ imprisonment eventually.

23.  In Lo Shiu Wah CACC 399/1999, the defendant having absconded for 5 years was also afforded only one-fourth discount despite his guilty plea. 

24.  The defendant here absconded for 12 years and is likewise given only one-fourth discount for his plea.  The 44 months’ imprisonment is therefore reduced to 33.  However, 3 months is to be afforded to his voluntary surrender.  The sentence for Charge 1 is therefore 30 months’ imprisonment.

Failure to surrender: Charge 2

25.  In Lam Kin Chung CACC 27/2007, the defendant facing charges of theft and using others’ credit cards has absconded and evaded trial for 10 years.  His 9 months’ imprisonment starting point under this charge was upheld on appeal.  

26.  This court likewise adopts 9 months’ imprisonment as the starting point, which is reduced by a full one-third for defendant’s guilty plea.  His sentence under this head is therefore 6 months’ imprisonment. 

Totality principle

27.  The defendant has been punished for his abscondence in paragraph 24, he was only given one-fourth discount for his plea to Charge 1.  This 6-month imprisonment had to run wholly concurrent to the Charge 1 (30 months’ imprisonment), so as to avoid double punishment or jeopardy. 

28.  This court so orders and the defendant is sentenced to 30 months’ imprisonment in total today.