HKSAR v. CHEUNG KA CHUN

DCCC 1038/2020

[2021] HKDC 1400

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1038 OF 2020

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REASONS FOR SENTENCE

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1.  The defendant is convicted of two charges of trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134, on his own plea and agreement to summary of facts.

Facts

2.  On 14 July 2020 at around 1925 hours, police intercepted the defendant who was leaving his residence.

3.  Upon body search, one plastic bag was found inside the pocket of his pants, which contained 30 resealable plastic bags of 2 sizes containing a total of 7.01 grammes of a solid containing 3.02 grammes of cocaine. 

4.  The defendant was then arrested for the offence of trafficking in a dangerous drug and, under caution, he claimed that the cocaine found on him was only for his own consumption.

5.  House search was subsequently conducted by the police.  Inside defendant’s bedroom, the police found an electronic scale, numerous empty resealable plastic bags as well as one plastic bag containing 10 smaller resealable plastic bags containing a total of 2.9 grammes of a solid containing 1.24 grammes of cocaine and one plastic bag containing 11.5 grammes of a solid containing 4.99 grammes of cocaine.

6.  Under caution at the scene, the defendant claimed the cocaine found inside the flat was for his own consumption.

7.  In a subsequent cautioned video recorded interview, he said, including, that the cocaine found on him and inside the flat were for his own consumption; that he got the money to buy the drugs from the HK$10,000 granted by Hong Kong Government “Cash Payout Scheme”; that the drugs were packed in small packets so that he could control the dose he consumed every time; that the electronic scale found inside the flat was for measuring the dose of drugs he himself consumed, while the empty resealable plastic bags seized were left inside the flat after he committed his last trafficking of dangerous drugs offence.

8.  Street value of the cocaine seized was estimated to be HK$40,978.74.

9.  His urine test result showed that it was positive to cocaine.

Criminal record

10.  The defendant has one previous similar conviction in the year 2016, for which he was sentenced to 4 years and 6 months’ imprisonment.  He was released from jail in September 2018.

Mitigation

11.  The defendant is aged 27.  He is single and lives with his parents and younger sister.  Both parents work full time and his mother is in remission from breast cancer while his younger sister has been suffering from severe depression.  The defendant has harmonious relationship with his mother but rarely had conversation with his father. 

12.  He studied up to Form 3 level and since quit school and had been working at various jobs.  The most recent job prior to his arrest was said to be construction worker earning an average HK$10,000 to HK$12,000 per month, of which he would, if possible, give HK$2,000 to HK$3,000 monthly to his mother as household expenses.

13.  The defendant said that he developed drug-taking habit in the year 2019, as evidenced by his urine test result.  It was said that he had loose parental control and discipline throughout his life and he had poor judgment.

14.  Regarding the present offence, it was said that the defendant intended to consume part of the drugs for his own consumption and also his role was a drug courier. 

15.  Defence counsel submitted the defendant is now deeply remorseful and he understands that he could not repeat his mistakes, and that he is expected to spend a period of time in custody.

16.  The defendant’s 3 family members are in court and they are all supportive of the defendant.

17.  It is said the defendant realised that he could not waste his life like this, in and out of prison, and said that he would learn carpentry in prison and start a new life after release.

18.  Defence counsel submitted to court mitigation letter from the defendant’s mother and also the medical appointment slips for his mother and his sister.

19.  Defence counsel submitted that the total drugs involved is 9.25 grammes of cocaine and, pursuant to the case of HKSAR v Lau Tak Ming [1990] 2 HKLR 370, the appropriate sentencing starting point would be around 4 years and 9 months.

20.  He urged that this court to consider the totality principle and urged the two lots of drugs be calculated together in order to arrive at an appropriate overall sentencing starting point. 

21.  He also urged this court to give the defendant a one-third sentencing discount by reason of his guilty plea and also exercise discretion considering the appropriate discount concerning the defendant’s own consumption of drugs. As for the fact that he has previous record, defence counsel asked this court not to enhance the sentencing starting point by more than 6 months’ imprisonment.

Discussion

22.  For these offences, on conviction upon indictment, the maximum sentence is a fine of HK$5 million and life imprisonment. 

23.  The weight of the cocaine seized in this case totalled 9.25 grammes, namely 3.02 grammes in Charge 1 and 6.23 grammes in Charge 2.

24.  For trafficking in cocaine, following the authority of Pedro Nel Rojas [1994] 2 HKCLR 69, and adopting the guideline in the case of Lau Tak Ming, trafficking up to 10 grammes of cocaine, the appropriate sentencing starting point is within the range of 2 to 5 years’ imprisonment.

25.  The facts of this case clearly does not support that a significant part of the drugs was for the defendant’s own consumption, although this court would accept that, at the material times, insignificant portion of the drugs was for his own consumption, as the urine test result showed positive in cocaine.

26.  The stated income of the defendant as construction worker monthly of HK$10,000 to HK$13,000 per month clearly cannot support his drug habit.  According to him, he consumes 3 grammes of cocaine every 2 days.  The street value of 9.25 grammes of cocaine in this case worth HK$40,978.74 and therefore monthly expenses on cocaine alone for him would be in the region of HK$199,000 per month.  This means that the defendant had to busily engage himself in drug trafficking in order to support his drug habit.

27.  When the defendant was intercepted leaving his residence, the 3.02 grammes of drugs on him were packed into 30 resealable plastic bags of 2 different weight sizes.  The fact that the drugs were packaged into 2 quantities sizes do not support his contention that he packaged the drugs to monitor his own consumption.

28.  Before sentencing, this court has carefully considered mitigation submitted by defence counsel, including the mitigation letters and the medical appointment slips.

29.  Trafficking in a dangerous drug is a very serious offence and it is established that personal background is seldom a valid mitigating factor.

30.  The defendant committed the present offence less than 2 years after he was released from prison after serving 4 years and 6 months for a similar offence.  This is an aggravating factor in sentencing, but, on this occasion, in order to give the defendant a chance, the court would not enhance the sentencing starting point but he would expect the same to be enhanced in future on similar convictions.

31.  For Charge 1, adopting the tariff, the sentencing starting point for trafficking 3.02 grammes of cocaine is 34 months’ imprisonment.  Taking into account the one-third sentencing discount, the same is reduced to 22.6 months’ imprisonment.  None of the cocaine under this charge is for his own consumption.

32.  For Charge 2, the sentencing starting point for trafficking 6.23 grammes of cocaine is 46.4 months’ imprisonment.  Again, after one-third sentencing discount by reason of his guilty plea, the same is reduced to 30.9 months’ imprisonment.

33.  Considering the totality principle and the overall criminality of the defendant in this case, had the defendant been charged with one single trafficking charge of 9.25 grammes of cocaine, the sentencing starting point should be 57.3 months’ imprisonment. After one-third sentencing discount, the same would be reduced to 38.2 months’ imprisonment. 

34.  And, by reason of his own consumption of a small quantity of drugs, the court is willing to further discount the sentence to 36 months’ imprisonment, which this court considers to be the just and proportionate sentence in view of the defendant’s overall culpability in this case.

35.  Accordingly, 5.1 months of imprisonment in the sentence of Charge 1 is to run consecutive to the sentence in the Charge 2.  The rest of the sentence in Charge 1 would run concurrent to the sentence in Charge 2.

36.  The total sentence that the defendant is to serve for this case is 36 months’ imprisonment.

37.  A word of advice to the defendant: as he knows, if he keeps on engaging himself with drugs, he would expect to spend the rest of his life going in and out of prison and he would destroy and hurt the lives of those who love him and support him.