HKSAR v CHEUNG HO YEUNG

DCCC 1059/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1059 OF 2011

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REASONS FOR SENTENCE

The defendant faces 2 charges of "Trafficking in a dangerous drug" (Charges 1 and 2), 1 charge of "Possession of a dangerous drug" (Charge 3) and 1 charge of "Possession of equipment fit and intended for the inhalation of a dangerous drug" (Charge 4). Initially, he pleaded not guilty to all 4 charges. After a voir dire, he pleaded guilty to all 4 charges.

Summary of Facts

2.  About 5:00 pm on 31 May 2011, pretending to be a buyer,     PC 6861 (PW1) phoned someone named "Yeung Yeung".  Over the phone, Yeung Yeung asked PW1 if he wanted some "cold stuff".  PW1 gave a positive reply and offered to buy $300 of "cold stuff".  Yeung Yeung asked PW1 to pick it up at Tai Hing Estate.

3.  PW1 later met the defendant, who claimed to be Yeung Yeung, at Ground Floor, Hing Shing House, Tai Hing Estate.  PW1 gave him $300.  The defendant then led PW1 to a staircase on the 1^st Floor and pointed at a plastic bag with a blue label ("E1") placed on the 2^nd step of the staircase.  PW1 picked up E1, which contained 0.25 gramme of a crystalline solid containing 0.24 gramme of methamphetamine hydrochloride (commonly known as "ICE"), and asked the defendant whether it was the packet.  The defendant gave a positive reply.  PW1 left.  This is Charge 1.

4.  On 14 June 2011, the Police raided a public housing unit situated at Room 1320, 13/F, Hing Shing House.  Madam SZE Wai Lai opened the door.  The defendant and Madam CHAN Ching Yan were found on a bed in the living room.  The defendant is Madam CHAN's boyfriend and Madam CHAN is Madam SZE's daughter.

5.  After a house search, the Police found, inter alia,  the following items in the headboard cabinet of the bed on which the defendant and Madam CHAN were sleeping :-

(i) 1 orange plastic box containing 2 resealable transparent plastic bags which contained a total of 0.10 gramme of a crystalline solid containing 0.10 gramme of methamphetamine hydrochloride ("E3") and 3 resealable transparent plastic bags which contained a total of 0.73 gramme of a crystalline solid containing 0.71 gramme of methamphetamine hydrochloride ("E4");

(ii) 1 black electronic scale and 1 silvery electronic scale;

(iii) a large quantity of empty resealable transparent plastic bags;

(iv) 1 glass bottle inserted with 2 glass tubes ("E9") containing 30 millilitres of a liquid which contained traces of methamphetamine hydrochloride; and

(v) some blue, red and yellow stickers.

6.  Under caution, the defendant admitted at the scene having sold ICE to PW1 at $300. He also admitted ownership of all the items found in the headboard cabinet of the bed.  He placed those items in the cabinet the day before.

7.  In his record of interview, the defendant admitted that he purchased E3 and E4 in Yuen Long.  He intended to sell E4 to others at $300 per packet (Charge 2).  E3 was for his own consumption (Charge 3).  He used E9 to inhale ICE (Charge 4).

8.  In a subsequent identification parade, PW1 positively identified the defendant.

Mitigation & Sentence

9.  The defendant is now 17 years old.  He has 1 previous record involving 4 offences of "Theft" for which he was sentenced to 12 months of probation in July 2010.  Prior to his arrest, the defendant worked as a transportation worker earning $8,500 per month.  He resided with his parents and 2 elder siblings.

10.  Defence counsel Mr. Allan submitted that by pleading guilty to the charges, the defendant has spared the exposure of PW1, the undercover police officer, in open court.  Mr. Allan stated that the Police could have arrested the defendant right there and then after he had sold E1 to PW1.  If it was done, the defendant would not have had the opportunity to commit Charges 2 to 4. Instead, the Police waited for him to commit further offences.  With respect, I disagree with Mr. Allan on this point.  The decision to commit or not to commit Charges 2 to 4 rested entirely on the defendant.  The Police did nothing to encourage him.

11.  Mr. Allan also submitted that as the court has heard in the voir dire, the defendant's girlfriend, Madam CHAN, has a pitiful family which deserves some sympathy.  He stressed that the defendant loves Madam CHAN very much and cares about her baby as well; he was willing to assume the role of a father for that baby (when in fact he is not).

12.  Based on section 109A(1A) of the Criminal Procedure Ordinance (Cap.221) and owing to the seriousness of this case, I took the view that it was unnecessary to obtain any pre-sentencing reports despite the defendant's young age.  A clear message must be conveyed to the general public that "drug trafficking" is a serious crime and that drug traffickers would most certainly be punished by long-term imprisonment.

13.  Today, before I deliver my reasons for sentence, Mr. Allan informed me that the defendant has just become aware that Madam CHAN is now pregnant for 2 months and the defendant is the father.  In my view, it does not affect the sentence because the defendant and Madam CHAN should have considered the risk of the defendant being convicted before they decided to conceive a baby.

14.  Regarding Charges 1 and 2, the Court of Appeal has laid down clear sentencing tariffs for trafficking in ICE (see A-G v CHING Kwok-hung [1991] 2 HKLR 125).  For up to 12 grammes, the sentence ranges from 3 to 7 years' imprisonment.  In Charges 1 and 2, the defendant trafficked in a total of 0.95 gramme of ICE.  I bear in mind that for this quantity, the appropriate starting point should be 3 years.

15.  For Charge 1, it involves 0.24 gramme, I adopt a starting point of 2 years.  One-third discount is given for the guilty plea, reducing the sentence to 16 months.  For Charge 2, it involves 0.71 gramme, I adopt a starting point of 2.5 years. One-third discount is given for the guilty plea, reducing the sentence to 20 months.  Other than the guilty pleas, I see no other mitigating factors which warrant any further discount.  The sentences I pass for Charges 1 and 2 are 16 months and 20 months respectively.

16.  For Charges 3 and 4, according to section 54A(1A) of the Dangerous Drugs Ordinance (Cap.134), there is no need to obtain a DATC report in the present case.  In Charge 3, 0.10 gramme of ICE is involved.  I adopt a starting point of 9 months' imprisonment.  One-third discount is given for the guilty plea, reducing the sentence to 6 months.  For Charge 4, I adopt a starting point of 4.5 months' imprisonment.  One-third discount is given for the guilty plea, reducing the sentence to 3 months.  Again, other than the guilty pleas, I see no other mitigating factors which warrant any further discount for Charges 3 and 4. 

17.  Having considered the circumstances of this case and the totality principle, I order the sentences of Charges 1 to 4 to run in the following manners :-

(i) Charges 2 to 4 concurrently; and

(ii) 4 months in Charge 1 consecutive to Charge 2.

Hence, the total prison term for all 4 charges is 24 months.