HKSAR v. KWOK WAI CHEONG

DCCC 66/2025

[2025] HKDC 1889

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 66 OF 2025

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REASONS FOR SENTENCE

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1.  The defendant faces a single charge of trafficking in a dangerous drug to which he has entered a plea of guilty.  The particulars of offence allege the defendant was trafficking in a dangerous drug which was namely cocaine with in total 5.82 grammes of narcotic content inside the drug.

2.  The facts are straightforward.  On 22 June 2024 in the early hours of the morning, police officers were conducting a patrol in Ngau Tau Kok in Kowloon.  A black motor vehicle was stopped.  It had two individuals in the vehicle, the defendant being seated in the front passenger seat.  Another person was driving the car.

3.  A search found various bags containing cocaine.  Firstly, two resealable bags were found in the defendant’s right trouser containing 0.49 grammes of cocaine.  The defendant was then cautioned and claimed the drugs were for his self-consumption.  Then a search of the vehicle was conducted.  Various drugs were found in the glove compartment of the passenger seat.  Two resealable bags each containing 11 further resealable plastic bags containing cocaine.  In the first set of bags was a total of 2.81 grammes of cocaine, the second set of bags a total of 2.52 grammes of cocaine. A further box was found with an electronic scale, tweezer and a small cup. Then it was again shown the other bags of cocaine which are listed as Exhibits 2 and 3 and also said those were for his own consumption.

4.  A mobile phone was found on the defendant and $2,011 in total was seized from him.  The defendant admitted in subsequent interviews that the drugs found in the Exhibit E (1)  through to (3)  were cocaine.  The electronic scale found in the vehicle was used for weighing the cocaine.  He had placed Exhibits 1 and 2, the first two bags of cocaine, in the glove compartment of the vehicle and he said all the drugs were for his self-consumption.  The estimated street value of the cocaine is agreed at $4,376.64.

5.  The defendant’s antecedents show that he is 23 years old and is a person of clear record.  Because he has a clear record, I obtained a Background Report on him which does not go much further than the mitigations already advanced that shows he is still a very young man. He is the only child of his family.  His parents are divorced.  He has been a student overseas in Taiwan studying at the I-Shou University in Taiwan Mechanical and Automation Engineering.  He was in his final year at the time when this offence was committed and believed as a result of that his withdrawal from the degree course when he was remanded into custody.   Apparently, it was his plan to continue or restart another undergraduate programme in Optical Engineering in that university when his sentence of imprisonment will be completed.

6.  Although he is remanded in custody to start with, he was granted bail in June 2025 and I am told during that time he works in McDonald’s restaurant and has enrolled in various training courses.

7.  I turn to the approach to sentencing here, I am dealing with one single drug, trafficking in one single drug, that is 5.82 grammes of cocaine.  It is common and well-known that the approach to sentencing in this must encompass the guideline sentencing that is for this drug and also there is an approach to sentencing set out in the case of Herry Jane Yusuph which can be found at [2021] 1 HKLRD at page 290 which recommends a six-stage approach.  Furthermore, the guideline sentence for trafficking cocaine can be now found at the case of Huang Ruifang No. 3 [2025] 2 HKLRD 138.

8.  For this quantity of cocaine, that is up to 10 grammes, the guideline is a sentence between 2 to 5 years imprisonment.  Dealing here with 5.82 grammes of the drug, on a mathematical calculation that would put the sentence at just below 45 months’ imprisonment. Of course, the case of Yusuph enjoins the court not to take a purely mathematical approach.  For sentencing it is a discretionary exercise by the court and must take into account the kind of factors set out in the case of Herry Jane Yusuph such as the defendant’s background, whether he has a clear record, how he became involved in the offence and his role in the particular form of offending.

9.  In this case it can be seen the defendant is what we call a low-level trafficker, a person who is involved in the distribution of the drug and its transportation.  Of significance in this case in determining the operative starting point is the mitigation put forward.  The defendant advances the case that the drugs were for his own consumption.  That was advanced at a very early stage in his response to caution.  The defendant maintains that in court today.  He said a significant portion of drug, he says would be for his own consumption. 

10.  There are authorities that deal with the approach the court should take.  I refer to the case firstly of Chow Chung Sang [2012] 2 HKLRD 1121 which states that where part of the drugs are intended for the trafficker’s own consumption then the discount for the sentence for the starting point of sentence can range somewhere between 10 to 25 per cent of the basic starting point having regard to the total quantity of drug involved, the proportion of drug intended by the defendant for his self-use, the nature of the drugs, the nature of the trafficking, whether it is organised or premeditated and again the background of criminal record of the defendant.  I also have regard to the case Cheung Wai Man [2019] 1 HKLRD 817 that says in determining the issue of self-consumption a sentencing court must initially find that a significant portion of the drugs would be consumed by the defendant.

11.  In dealing with this exercise, one would look to see if there is any record of drug-taking in the defendant’s past.  The defendant has a clear record here, that is not the case here, and any explanation given by the defendant following arrest.

12.  It was the defendant made a fairly lengthy explanation in his records of interview in which he essentially said that out of the two bags of 11 bags of cocaine, one was for his own consumption, the other one was to be returned to the seller because the quantity involved inside the bag was too low.  So the defendant was maintaining throughout that a significant quantity of the drug was for his own consumption.  There is nothing in the other evidence to suggest that the defendant was misleading the police or the court when he made that claim in his records of interview.  On balance, I consider the defendant has been able to advance the case to the necessary standard of proof that a significant portion of the drug was for his own consumption and that should be taken into account in the sentencing exercise.

13.  The sentencing exercise must first determine the operative starting point for sentence then determine are there any aggravating factors to raise that starting point for sentence and if that is the case then to add them in and if not the case then to determine what mitigation factors there are present to determine the final sentence.

14.  I find in this case there are no aggravating factors and there are two mitigating factors.  Firstly, the defendant’s self-consumption of the drug, and secondly, the defendant’s plea of guilty which would permit a further one-third discount from the starting point that is determined after consideration of the defence of self-consumption of the drug has been taken into account.

15.  I find of significant of significance to this case is the defendant is a young man, he is new to this form of offending.  He has previously had a clear record and he has been out of the jurisdiction and also intends to leave the jurisdiction when his sentence of imprisonment is completed. 

16.  I note that a mathematical calculation of a starting point for sentence would lead to a starting point for sentence at just below 45 months’ imprisonment.  Having regard to the factors that I have already set out, I will take an initial starting point for sentence at 42 months’ imprisonment. 

17.  As I said, the defendant is entitled to a discount for his self-consumption of the drug.  Those discounts can range between 10 to 25 per cent.  I shall take a discount in fact from the starting point for sentence of 6 months’ imprisonment which represents a deduction of around 15 per cent which I consider is appropriate in this case.  That now leads to a starting point for sentencing of 36 months’ imprisonment. 

18.  The defendant is entitled to a full one-third discount from that which leads to a sentence of 24 months’ imprisonment or 2 years’ imprisonment.  That will be the sentence of the court.