HKSAR v. CHONG CHEUK NAM

DCCC 448/2023

[2024] HKDC 192

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 448 OF 2023

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REASONS FOR SENTENCE

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Charge

1.  The Defendant (“D”)  was convicted on his own plea of one count of trafficking in dangerous drug, namely 4.48 grammes of a solid containing 3.56 grammes of cocaine.

Summary of Facts

2.  On 22 December 2022, the police executed a search warrant into a room of a guesthouse (“the Room”)  of which D was one of the registered guests.

3.  At around 1330 hours, during the search of the Room, the following items were found inside the toilet: -

(a)  A transparent re-sealable plastic bag containing 17 small transparent re-sealable plastic bags, which contained the drug in question (“Exh 1”);

(b)  A black electronic scale (“Exh 2”); and

(c)  A large quantity of small transparent re-sealable plastic bags (“Exh 3”).

4.  In December 2022, the estimated street value of the 3.56 grammes of cocaine contained in Exh 1 was HK$6,639.36.

5.  Records obtained from the Guesthouse confirmed that the Room was booked by D and a male on 20 December 2022. The Room was scheduled to be checked out at 1100 hours on 23 December 2022.

6.  In the subsequent cautioned VRI taken with D on the same day, D had, inter alia, admitted the followings: -

(a)  At the material time, D was a logistics worker earning a monthly salary of around HK$25,000;

(b)  D intended to sell the 17 packets of cocaine contained in Exh 1 to others at the price of HK$450 per packet;

(c)  D booked the Room for the purpose of selling dangerous drugs to others;

Criminal Record

7.  The D had six court appearances with nine criminal convictions, five of them related to drugs offences.

Background and mitigation

8.  The D is 29 years old, he was divorced in 2021, his 6 years old son is living with his ex-wife. The D made a living as a delivery worker for $25,000 per month prior to the present offence.

9.  The Defence said that the D was a drug addict, he consumed 1 gramme of cocaine per day. Therefore part of the drugs was for the D’s self-consumption and asked for further deductions in the sentence.

Sentence

10.  The sentencing guidelines for trafficking in heroin are applicable to cocaine, AG v Pedro Nel Rojas [1994] 1 HKC 342. Applying the sentencing principle in R v Lau Tak Ming & Ors [1990] 2 HKLR 370, trafficking in cocaine up to 10 grammes will attract a sentence between 2 to 5 years’ imprisonment after trial.

11.  In the present case, the narcotic content is 3.56 grammes of cocaine, the starting point is 3 years’ imprisonment.

12.  There are also aggravating factors that the D had a number of previous drug related convictions and he committed the present offence while he was on police bail for DCCC 1058/2021. As such I increase the sentence by another 6 months. The total sentence is now 3 years 6 months, I reduced to 2 years 4 months after one-third discount.

Self-consumption

13.  The Prosecution does not agree that any part of the drugs were for his self-consumption on the grounds of what he said under caution.

14.  Today, I am told that the D will not give evidence on the claim of self-consumption.

15.  According to HKSAR v Cheung Wai Man CACC 258/2017, the Court of Appeal said in paragraph 54 that:

“… There is a real danger of abuse in this avenue of mitigation, hence a sentencing court must have a proper factual and evidential basis in accepting the contention that a “significant proportion” of the drugs were for the defendant’s own consumption. Mere assertions by counsel from the bar table, unless agreed or not in dispute or contention, will generally not suffice. … It is therefore important for a defendant in making a claim of self-consumption to put before the court credible and reliable information and material in an acceptable form.”

16.  In the case of HKSAR v Wong Suet Hau & Ors [2002] 1 HKLRD 69, the Court of Appeal has listed a number of factors for sentencing consideration. In the present case: -

(a)  The street value of the drugs was about $6,640. That was about 1/3 of his income;

(b)  After his arrest, he said under caution that he booked the room for purpose of selling the drugs;

(c)  The drugs were properly packed into 17 small packets;

(d)  He intended to sell the 17 packages of drugs for $450 each. He did not say that he wanted to keep any part of them for his own use;

(e)  There was no presence of paraphernalia associated with drugs were found; and

(f)  When the D needed 1 gramme of cocaine per day for self-consumption which costs him $1,500 per day. That means he spent around $45,000 per month on drugs, there was a deficit of $20,000 per month. That’s why he resorted to trafficking/selling of dangerous drugs to make up the balance.

17.  To this end, it is clear to me that the drugs found in the toilet bins were all for trafficking, none of them were for the D’s self-consumption.

18.  The D is not entitled to any further discount.

Sentence

19.  He is ordered to serve a period of 2 years 4 months of imprisonment.