HKSAR v. SO KIN CHEUNG

DCCC 507/2018

[2018] HKDC 1628

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 507 OF 2018

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REASONS FOR SENTENCE

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1.  In this case, the defendant, So Kin Cheung, is convicted of one count of trafficking in a dangerous drug upon his plea and admission of the facts.

2.  On the 13 March 2018, at about 4 pm, the defendant was intercepted at a car park in To Kwa Wan by the police and from the vehicle (to which he had a key), the police found a black plastic bag in the storage compartment located at the driver’s door.  Inside the bag, here were two transparent bags which contained 34 and 36 transparent resealable plastic bags of cocaine.  All together the total weight was 15.9 grammes of a solid of which 11.22 grammes were cocaine.  The street value of the cocaine in question was estimated to be $13,845.48.

3.  When first cautioned, the defendant stated that the drugs were his and that it was for selling to the ladies working at nightclubs.  In a subsequent interview, the defendant changed his tone slightly saying that he was a drug user.  He spent $7,000 to purchase the bags of dangerous drugs from a discotheque in Jordan.  He would share the drugs with others and occasionally sell to the ladies working at the nightclubs.  He himself would consume 30 to 40 packets each week and that he ran a logistics company and earned about $50,000 per month. 

4.  The defendant admitted to be in possession of the dangerous drugs for trafficking.  Trafficking in dangerous drugs, in particular, cocaine, has been repeatedly considered by the Court of Appeal and we have a very clear guideline for sentencing. 

5.  Both the prosecution and defence took no issue of the fact that the applicable authority is Lau Tak Ming and the present quantity falls within 10 to 15 grammes of cocaine bracket and warrants 5 to 8 years’ imprisonment.  I see no reason to depart from it and, therefore, I adopt 60 months as the starting point. 

6.  In mitigation, the defence gave a detailed account of the defendant’s situation and that he became an addict because of the conditions, the ailments suffered by his daughter.  I found this excuse rather shameless because one would rather imagine that if there is someone, in particular a young daughter getting sick in the family, as a father and as a provider of a family, have to even work harder instead of taking dangerous drugs.

7.  I do not find that the situation of his daughter (for whom this court has great sympathy), is any reason or is any excuse for the defendant to be committing the present offence. 

8.  The defence also contended that part of the drugs was used for self-consumption.  If the court is satisfied that a significant part of the drugs was for self-consumption, this court has the discretion to reduce the starting point.

9.  The defendant stated that he is running a logistics company, but furnished no information about it except from the oral contention by counsel and also by the defendant himself.  He also explained he smoked 30 to 40 packets per week.  This court has no information as to the general smoking drug consumption pattern in the case of cocaine, but he has admitted to be selling the drugs to the ladies working in the nightclub.

10.  I found the quantity of the number of packets in this case is suspicious.  However, the defendant has furnished an account which cannot be contradicted by the prosecution that he did have the financial means to sustain his addiction.  I, therefore, exercise my discretion to reduce the starting point 10 per cent.  The proper starting point for the present case is 54 months.

11.  I have considered the background information and the mitigating factors put forward.  The defendant has one previous conviction, a driving offence. Nonetheless, this means that he can no longer claim that he is of good character.  At the time of the commission of the offence, he is a mature man of 44 years old and should be held fully responsible for his behaviour. Therefore, the only relevant mitigating factor remaining is the fact he pleaded guilty.

12.  In accordance with the directions of the Court of Appeal, I, therefore, reduce the 54 months’ imprisonment down to 36 months.  I see no other reason which might justify my further exercise of leniency on his behalf. 

13.  The defendant is, therefore sentenced to 36 months’ imprisonment.