HKSAR v. CHENG TSE HONG

DCCC 80/2023

[2024] HKDC 403

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 80 OF 2023

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.  The defendant has pleaded guilty to one charge of trafficking in a dangerous drug in 19.41 narcotic content grammes of cocaine on 31 August 2022.

2.  The drugs were found as a result of a search of a taxi at a police roadblock in the evening of 31 August 2022 when a taxi was stopped in the junction of Bute Street and Canton Road in Mong Kok.  The defendant was a passenger inside the taxi.  Eventually a body search was conducted.  The drugs were found in an envelope in the defendant’s crossover bag that he was wearing at the time.  The drugs themselves were found in two transparent resealable plastic bags, each bag containing about 9½ grammes of a cocaine mixture.  The total value of the drugs seized is something in the region of $20,172 of powder or $38,760 if used as crack cocaine.

3.  The defendant at the time said the cocaine drug was for his own consumption.  He maintains today that a significant portion of drug would be used for his own consumption and asks for a deduction from sentence on that basis.  The defendant at the time of his arrest had $871 in cash and three mobile phones and the defendant admits that he possessed the drugs seized for the purpose of trafficking in them.

4.  As far as the defendant’s antecedents are concerned, he has a total of five previous convictions, one relevant, that being for the possession of a dangerous drug in 2010 when he was sentenced to a total of 1 year and 4 months’ imprisonment for a quantity of what I am told today is cocaine.  The significance of that conviction would be that it would support the defendant’s proposition that he is a drug addict and also would have consumed a significant portion of drug that was seized as a result of the roadblock interception. That conviction was in fact in 2010 which is some 14 years ago.

5.  As far as other mitigation, we find the defendant is educated to a secondary school level.  He is single.  He was employed as a transportation worker, at the time he was earning about $30,000 a month.

6.  As far as the sentencing approach is concerned, that can be found in a number of cases.  Firstly, the tariff for heroin that is applicable for use in cocaine cases, as we can see that came from the case of HKSAR v Abbas at CACC 304/2008.  The actual tariff for heroin is found in the case of R v Lau Tak Ming and in this case, given the quantity, the relevant category is between 10 to 50 grammes which would lead to a sentence of between 5 to 8 years’ imprisonment.  A purely mathematical calculation based on this quantity would lead to a starting point of 68 months’ imprisonment, or 5 years 8 months.

7.  In HKSAR v Tam Ling Yuen, that is at CACC 159/2015, it was said that a sentencing discount of between 10 to 25 per cent of the starting point could be awarded if the defendant satisfies the court that a significant proportion of the drugs is for his own self-consumption.  Well how is that to be done?  The case of HKSAR v Tsoi Man Chun, CACC 414/2015, provides some guidance on the factors for consideration.  It is essentially a matter of fact to be decided by the Judge at sentencing.  It is submitted that where a significant portion of the drug is said to be for self-consumption there are a number of factors that could be relevant.  Those are factors such as the quantity, value of the drugs and how the drugs are packaged and here the quantity varies between $20,000 to $38,000.  The drugs are packaged in two packages, they are not broken down for distribution at this point.  The location where the drugs were found, found in a taxi the defendant was travelling.  Were any items were found to distribute or consume the drugs and finally is the defendant an addict, what explanation was given, does he have a criminal record for drugs?

8.  In this case we find there is certainly evidence to suggest the defendant is an addict of this drug and no items were found for the distribution or consumption of the drug at the time.  That is probably for the reason that the defendant was travelling with the drugs.

9.  The defendant in mitigation has submitted he would consume some 10 cigarettes of the drug, each one containing about 0.3 grammes of cocaine daily.  This would lead to a daily consumption of around 3 grammes.  The total quantity that he had in his possession would last for some 7 to 8 days.  On that basis, the possession, the quantity possessed is not large for him.  As said, the drugs were found in two bags, not broken down for distribution.

10.  As far as the defendant’s drug history is concerned, we find that he has a previous conviction in 2010 so he has been taking drugs for what appeared a lengthy time.  He described himself as a drug addict in his antecedent statement and I also have a report dated 18 May 2023, which is recent, from a Doctor Ng who is resident in Castle Peak Hospital.  The defendant obviously has issues arising from substance abuse.

11.  The defendant is described as a case of hypnotics dependence syndrome, cocaine and ketamine harmfully used together with a history of polysubstance abuse first known to mental health services in 2015.  He had various drugs prescribed for sleep.  He had a psychiatric admission in April 2021 for confused speech and disorganised behaviour due to hypnotics intoxication.  He had to be detoxified as a result of that.  He has attended follow-ups but it would appear that illegal substance abuse continues.  It is clear from this report the defendant has had both in and outpatient treatment as a result of substance abuse.

12.  I consider based on this material that the defendant has clearly established factually to a criminal standard a significant portion of drug would be for his own self-consumption.

13.  Taking that approach to sentence that I have set out bearing in mind the quantity of drug, I take an overall starting point on this charge of 68 months’ imprisonment, 5 years and 8 months’ imprisonment.

14.  The defendant is entitled to a one-third discount but firstly I will apply a discount on the basis that the defendant has established a significant portion of drugs for his own consumption, that will be in the region, not a precise calculation, in the region of 15 per cent which is 11 months.  The deduction from the starting point will then be one of 11 months which takes the starting point now to be 57 months’ imprisonment.  The defendant is entitled, due to his early indication of plea, to a full one-third discount from that which leads to a final sentence of 38 months’ imprisonment and that is the sentence I will impose, one of 38 months’ imprisonment.