HKSAR v. CHEUNG KAM FAI

DCCC 899/2022

[2023] HKDC 1285

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 899 OF 2022

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REASONS FOR SENTENCE

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1.  The defendant pleads guilty to two charges of trafficking in a dangerous drug. The facts admitted by the defendant can be summarised as follows.

2.  On 1 June 2020, police officers, including PW1 and PW2 conducted an anti-narcotics operation and laid in ambush near Wang Tak Road, Yuen Long.

3.  PW1 saw the defendant sitting furtively near a flowerbed. The defendant searched the flowerbed and was seen tucking something into his trousers near his right waist. He was later intercepted by the police.

4.  On a body search, altogether 50 plastic straw packets containing heroin, ie Exhibits 1 to 5 were found on his person. The defendant was escorted back to the flowerbed. Upon search, another 50 plastic straw packets containing heroin, ie Exhibits 6 to 10 were found in the flowerbed.

5.  The defendant was arrested. Under caution, he stated that all the drugs were for his self-consumption. At the subsequent video-recorded interview, the defendant stated inter alia that the packets seized by the police belonged to him and they were heroin. He had purchased the two bags of heroin for $10,000. He would consume some and sell some for $130 per straw packet, making a profit of $10 per straw packet.

6.  Government chemist confirmed that:

(a)  Exhibits 1 to 5 contained a total net weight of 6.36 grammes of heroin; and

(b)  Exhibits 6 to 10 contained a total net weight of 6.32 grammes of heroin.

7.  The total estimated price of the dangerous drugs was about $14,000.

8.  The defendant now admits in court that he possessed all the heroin for unlawful trafficking.

9.  The defendant has 15 previous convictions, including four offences for possession of dangerous drug.

10.  Mr Lai, counsel for the defendant adopts his written submission in mitigation for the defendant and makes further submission in court. He says that the defendant was fully cooperative with the police officers and confessed his involvement in the trafficking offences voluntarily.

11.  He asks the court to grant the defendant the full one third discount of sentence for his early plea of guilty and his earliest full cooperation with police. Mr Lai confirms that there is now no claim for self-consumption of any of the drugs seized.

12.  I am told that the defendant is a lonely, old and sick person. He is 69 years old with only Primary 2 education. He was a waiter and driver before, but now he is unemployed and has to rely on CSSA for a living.

13.  Before his arrest, he had been living alone in a Yuen Long public housing unit. He is a divorced person and he already lost contact with his two ex-wives.

14.  Mr Lai tells the court that the defendant is not of good health. He has various dire medical conditions in his pancreas, his heart, his liver and his brain. Two medical reports from Pok Oi Hospital are submitted to court in support of this mitigation. Counsel asks the court to give consideration on humanitarian ground for his ill health.

15.  In respect of the starting point for each charge, Mr Lai submits that the starting point on Charge 1 should be 46.89 months and on Charge 2, 46.75 months. He urged the court to take into consideration the principle of totality by ordering the bulk of his sentence under Charge 2 to be served concurrently with that of Charge 1, so that the total sentence would not become manifestly excessive. It is suggested 1 to 5 months of the sentence on Charge 2 can run consecutive to the sentence on Charge 1.

16.  Trafficking in a dangerous drug is a very serious offence. The Court of Appeal has laid down guideline for trafficking of heroin in R v Lau Tak Ming.[1] According to this guideline, the starting point for trafficking in heroin for up to 10 grammes is 2 to 5 years’ imprisonment. For trafficking between 10 to 50 grammes, the starting point is 5 to 8 years’ imprisonment.

17.  The two charges relate to 6.36 grammes and 6.32 grammes of heroin. I agree with Mr Lai that arithmetically, the approximate starting points for the two charges will be about 46.89 months and 46.75 months respectively. To round up, I will take 45 months as the starting point for each charge. After one third full discount for his guilty plea, the proper sentences will be 30 months for each charge.

18.  If the sentences for the two charges are simply added up together, the overall sentences will be 60 months reflecting an overall starting point at 90 months, which in my view would be an excessive sentence.

19.  As the two charges relate to dangerous drugs originally concealed in the same location, I will treat the two offences as one single series of unlawful trafficking of dangerous drugs and add up the quantity together, making a total of 12.68 grammes.

20.  Applying the guideline in Lau Tak Ming, the starting point for the total drugs will be around 62 months’ imprisonment. Given his guilty plea, he should be sentenced to about 41.33 months’ imprisonment.

21.  I note that the defendant is a 69-year-old man suffering from multiple chronic illness which are not very minor. On the other hand, age and health factors are not usually treated as strong mitigating factors in serious offences such as those in the present case.

22.  But having considered all the circumstances in this case, I am prepared to round down the overall sentence from 41.33 months to 40 months as an act of mercy for his dire conditions.

23.  To reflect this reduction, I order the defendant to serve 30 months’ imprisonment for each of the two charges. Ten months out of the sentence on Charge 2 is to be served consecutively to Charge 1. The total term of imprisonment will be 40 months’ imprisonment.