HKSAR v. CHEUK SHING LONG

DCCC 543/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 543 OF 2017

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REASONS FOR SENTENCE

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1.  The defendant was charged with one count of Trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The defendant pleaded guilty and admitted the facts, he was convicted accordingly.

Facts

2.  At around 1:13pm on 11 March 2017 the defendant was seen conveying two brown cartons into Room 1911 of Hoi Ning House (Block A).  The defendant was later intercepted by Police inside Room 1911. 

3.  Upon search, each of the two cartons were found containing 16 transparent sealed plastic bags containing suspected herbal cannabis.  And further two transparent sealed plastic bags containing suspected herbal cannabis and one electronic scale was found inside the bedside drawer in a bedroom of Room 1911.

4.  Under caution the defendant admitted he was helping others deliver herbal cannabis as he needed money.  He also admitted that he had just brought the drugs over from Unit A12 at 4^th Floor of Luen Hing Factory Building.  And the further two packets found were samples, and that scale was used to weigh the herbal cannabis.

5.  The Government Chemist subsequently confirmed that the 34 plastic packets seized contained a total of 9601.81 grammes of cannabis in herbal form.  The total estimated street value of all the drugs seized was $2,227,620.

6.  The landlord had rented Room 1911 to the defendant at $14,500 per month from 8 November 2015 till 7 November 2017, while the property agent concerned confirmed the defendant had rented Unit A12 at a monthly rent of $4,800 from 10 July 2016 till 9 July 2018.  The defendant however resided at other premises.

Newton hearing

7.  The defence submitted that the defendant committed the offence because he had financial difficulty after he closed down his partnership towards the end of 2015.  The facts admitted, however, transpired that the use of two premises rented by the defendant in 2015 and 2016 in trafficking the dangerous drug, I indicated to the defence that the whole circumstances were very suspicious, and there is ground for me to believe that the two premises were rented by the defendant for the purpose of trafficking.

8.  The defendant through his counsel said that was not the case, the lease of Room 1911 was taken out for sub-letting before his partner ran away while the Unit A12 was for storage by him and his brother.  He could give evidence on this matter.  As the role of these two premises had a potentially significant effect on the level of sentence, a Newton hearing was directed.

9.  The defendant gave evidence that the flat Room 1911 with 2 rooms was rented for lodging business, receiving mainland travellers at daily rate $500 per room, and convenience cooking food could also be provided.  Unit A12 was rented for storage for his transportation work and his brother’s trading business of red wine and air-conditioner.  His brother would contribute towards the rental of Unit A12.

10.  The defendant said after he closed down his business in China, he relocated back to Hong Kong and started to work on red wine business and lodging business.  As the defendant claimed in his evidence that he was in grave financial difficulty towards end of 2015, thus it was necessary to clarify how he got money to take out the lease for Room 1911, and to clarify when he started his transportation business in Hong Kong after he relocated back to Hong Kong caused he to rent Unit A12. However, the defendant said because he did not take medicine for his high blood pressure this morning, his memory was affected and he could not recall which month in 2015 he closed down his China business and matters about his transportation business. 

11.  The matter was thus adjourned to the next day for the defendant to provide any documentary proof for his legitimate business and to continue his evidence after taking his usual medication.  Leave was also granted to his counsel to take instruction from him on matters related to the newton hearing.  On return counsel for the defendant submitted that the defendant did not want to give further evidence and that it was not the prosecution’s case that the two premises were rented for the purpose of trafficking. 

12.  It is true that the prosecution did not have any question for the defendant after he gave evidence about the background of the renting of the two premises.  The evidence of the defendant as to the initial purpose of renting the two premises is consistent to the facts he admitted.  On this point I accept the defendant’s evidence.

Mitigation

13.  The defendant aged 61 married, his wife aged 40 and they had a 19 years old son, a university student in his second year.  He used to run a small construction and metal business with a partner in China.  At the end of 2015 his business partner ran away with the partnership money, the partnership was forced to close down after he settled the salaries of the employees and outstanding business debts. 

14.  After he closed down his business in China, he faced grave financial pressure yet he hid this from his family.  Upon relocation to Hong Kong, he started a small transportation company providing delivery services and temporary storage to customers and as a causal worker to support his family but this was not enough. 

15.  During this hard time, he came across his long lost friend “Ah Shing” who introduced him to do delivery work for $8,000 - $10,000 per month.  The defendant received some parcels from Ah Shing, they were all about Chinese medicine ginseng.  One of the parcel was the one seized in his last offence, in that occasion he has suspected that was dangerous drug, due to his lack of financial means he did not give due consideration and follow Ah Shing’s instruction and got arrested.

16.  Since then he could not locate Ah Shing until a day he came across Ah Shing again.  He asked for his remuneration, however Ah Shing persuade defendant to deliver drugs and promise to pay him all together. The defendant was in a desperate stage, he did not have a clear mind and agreed to do the job.  The defendant only submitted the reason for the commission of the offence as the background of the matter and knew this did not amount to any mitigating factor.

17.  He only told his family about his grave financial situation after his last offence.  His brother has assisted him to pay off his debts and his family continued to show their support to the defendant.  The defendant had a clear record for 60 years, he experienced a great change in 2016, during which he committed his last offence.  After his remand and conviction in May he then realized he had underestimated the seriousness of the matter.  He felt ashamed and regretted for his wrong.  He has indicated his plea at the earliest opportunity.  He had learnt a hard lesson, this was act out of character, he would never re-offend again.

18.  Although the defendant had a previous trafficking conviction, he was not a professional drug dealer. The herbal cannabis seized was just over 9kg, the defendant urged the court to take the lowest starting point within that band.  When he committed the present offence he had not been convicted for his last offence, after his conviction he finally realized the importance of his family, the seriousness of the offence, and he should not make easy money by committing crime.  The defence urged the court not to take he committed the offence while on police bail as an aggravating factor to enhance the sentence.

19.  Further I have indicated to the defence that the facts suggested that the Room 1911 was used as a transit point for distribution.  The defence submitted that the goods was convey from Unit A12 to Room 1911 because Unit A12 was sharing by the brother and further submitted that it was done according to instruction of Ah Shing.  The defendant did not ask Ah Shing for the reason because Ah Shing told him asked no question just do as instructed. 

Sentence

20.  Tariff is only provided for cannabis resin in the case of Chan Chi-man [1987] HKLR 221, adjustment is required in the case of herbal cannabis.  

21.  The Court of Appeal in the case of Tuen Shui-ming [1995] 2 HKCLR 129 replaced the three bottom bands in Chan Chi-man by a single band that “under 2,000 grammes – up to 16 months” while confirmed the tariff for the other bands concerning possession of cannabis resin for the purposing of unlawful trafficking:-

Over 2,000 grammes – 16 to 24 months;

Over 3,000 grammes – 24 to 36 months;

Over 6,000 grammes – 36 to 48 months;

Over 9,000 grammes – 4 years and upwards

And went on to state that:-

“… a sentencing judge must adjust the tariff, which applies to cannabis resin when sentencing for trafficking in either herbal cannabis or cannabis oil. Any adjustment should … be within a range dictated by the starting point indicated in the tariff. Persons with herbal cannabis could, except perhaps in cases where very large amounts are involved, properly be given a discount of up to a year from the sentence that would have been imposed had they had a similar amount of cannabis resin.”

22.  In the case of Sunarti DCCC985/2015 the sentencing judge referred to the authority of HKSAR v Kwang Sau Fan & Another [2002] 4 HKC 184 where 9.663 kilogrammes of herbal cannabis were sent by speed post from China to Hong Kong, the Court of Appeal upheld a starting point of 4 years’ imprisonment.  

23.  In the authority of HKSAR v Somboonburana Pumin HCCC170/2016 the defendant pleaded guilty to two charges of trafficking in a dangerous drug.  In during with the charge concerned 3,289.24 grammes of herbal cannabis, the judge adjusted the tariff downward by 12 months and adopted a starting point of 12 months’ imprisonment.

24.  In the authority of HKSAR v SUM Ying-kit HCMA 571/2005, the appellant court held that “applying the established guideline, the starting point for trafficking in 3.03 kg of cannabis resin should he 24 months’ imprisonment, and a downward adjustment of up to one year could be made in respect of trafficking in herbal cannabis. Here, the defendant did not have a criminal record in respect of trafficking, and there was no aggravating factor.  A reduction of 9 months was warranted. Hence the appropriate starting point was 15 months’ imprisonment, to be reduced to 10 months on account of plea”.

25.  The presence of international element in the case of Kwang Sau Fan & Another might have affected the extent of the downward adjustment, but even taken this into account it would appear that the adjustment for the 9.663 kilogrammes of herbal cannabis was less than 12 months.  This is also consistent to the direction given by the Court of Appeal in TUEN Shui-ming.

26.  The herbal cannabis worth over 2mil were stored at Unit A12, there must be a reason for the owner to have it be taken out from the storage.  The defendant let Ah Shing knew about Room 1911 and acted according to Ah Shing’s instruction to convey the cannabis from Unit A12 to Room 1911.  Inside Room 1911 2 bags of 300g herbal cannabis were found inside a drawer together with a scale for weighing herbal cannabis, the 2 bags were of similar packing of those found inside the two boxes conveyed by the defendant inside the flat.  I indicated to the defence that I consider the flat was used as a transit point for distribution, the defence submitted she has nothing further to add on this point.  The use of Room 1911 must be with the consent of the defendant.

27.  Here the defendant made use of two of his rental premises for trafficking dangerous drug.  One as storage the other as transit point for distribution.  The role of the defendant was substantial and he was not a mere delivery man.  A total of 9601.81 grammes of cannabis in herbal form with estimated street value of $2,227,620 was seized.

28.  Taking reference with the tariff 4 years and upwards for cannabis resin over 9,000 grammes, having consider the whole circumstances of the present case, I take 4 years 6 months’ imprisonment as the basic starting point and adjust it downward by 9 months for the cannabis in herbal form to 45 months.  Should the two premises have been rented in the first place exclusively for unlawful trafficking I would have adopted a much higher starting point.

29.  Clarification during the mitigation revealed that the defendant committed his last trafficking 2kg herbal cannabis involving speed post in 2016, he was put on police bail for that case since 11 May 2016.  The defendant committed the present offence in March 2017 involving over 9.5Kg herbal cannabis while he was on police bail for a similar offence.  The defendant was a mature person, the police bail should have alerted him that he was suspected to have committed a very serious crime, and he knew he had committed a very serious crime pending formally charged.  I consider this to be an aggravating factor and enhanced the sentence by 3 months.  

30.  The defendant has succeeded in persuading me that the two premises were not rented for the unlawful trafficking.  The defendant indicated his plea of guilty at the earliest opportunity, he is entitled to 1/3 discount.  The fact that he had a clear record for 60 years might be a good mitigating factor in his last offence but not again in this case.  I do not consider there to be any mitigating factor that called for further deduction. 

Order

31.  The defendant is sentenced to 32 months’ imprisonment