HKSAR v. SO HOI KUEN (aka SO KIN CHEUNG)

DCCC 552/2023

[2024] HKDC 587

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 552 OF 2023

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REASONS FOR SENTENCE

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1.  The defendant has pleaded guilty to two offences of trafficking in a dangerous drug, the first involving a total of 5.53 narcotic content grammes of cocaine, the second charge involving 1.11 narcotic content grammes of cocaine. Both offences were committed on 17 January 2023 in separate locations.

2.  The facts that are agreed showed that the defendant was searched by a street patrol in Parkes Street in Yau Ma Tei on the early morning, about 4 o’clock in the morning of 17 January 2023. Initially the drugs found in Charge 1 were found in a bag carried by the defendant. The drugs themselves were found in 32 transparent re-sealable bags. Later on the same morning, the defendant was at the Yau Ma Tei Police Station and for various reasons a further search of the defendant’s clothing took place and the remaining drugs as part of Charge 2 were found in one transparent re-sealable bag. A further body search was conducted, a total of over HK$54,000 was found on him together with some mobile phones.

3.  The total street value attributed to the drugs combined is $8,518.86. The defendant’s admission is one of possession of the two sets of drugs in the charges for the purpose of unlawful trafficking in them.

4.  The defendant’s antecedents show that he has a criminal record and a previous conviction in respect of trafficking in dangerous drugs in 2018 in which he was sentenced to 36 months’ imprisonment. In the police antecedent statement for information provided by the defendant on 15 March he described himself as a drug addict.

5.  As far as the defendant’s personal circumstances are concerned, he is 51 years old, he has three teenage children, he is divorced and does not live with his children.

6.  The defendant seems to have two occupations, one of working as a full-time manager of a nightclub and also operating his own construction engineering type of company. He estimates his income of between $60,000 to $70,000 per month when he is working.

7.  As far as the mitigation put forward by the defendant, the defendant, besides pleading guilty today, also is putting forward the proposition that a significant portion of the drugs were for his own consumption and he relies on certain facts as shown in the evidence. Whilst in custody he has a positive urine test for cocaine. The drugs were packaged for individual consumption in individual packages. The defendant had sufficient cash in his possession to pay for the drugs and the defendant has been a habitual user of cocaine saying in his mitigation he uses between half a gramme to one gramme of drug per day which means the drugs found on him would last between one to two weeks.

8.  As far as the approach to sentence is concerned, the assessment of the potential starting point is governed by guidelines. In the case of Attorney General v Pedro Rojas, [1994] 2 HKCLR 69 indicated that for cocaine the same guideline would be applicable as the one for heroin. The guideline for heroin contained in the case of R v Lau Tak Ming & Others at [1992] HKLR 370 established that for up to a quantity of 10 grammes possession for the purpose of trafficking of 10 grammes of the narcotic the potential range of sentence is between 2 to 5 years’ imprisonment.

9.  It appears that an entirely mathematical approach was taken so the total of drugs found in the two charges, that is 6.64 grammes, would lead to a starting point for an overall total sentence of 47 months’ imprisonment. That would be before any aggravating or mitigating factors are taken into account.

10.  The defendant of course is asking here for the court to consider the significant portion of drugs were for the defendant’s own consumption, that is a well-established mitigating factor. That can be found in the cases of HKSAR v Wong Suet Hau at [2002] 1 HKLRD and also HKSAR v Chow Chun Sang at [2012] 2 HKLRD 1121. They were all established at a deduction of between 20 to 25% from the original starting point could be appropriate where the court finds on a factual basis that a significant portion of the drugs were for the defendant’s own consumption. It is for the court itself to determine whether that discretion should be exercised whether there should be any reduction of sentence and the extent of the reduction. Also more recently the courts have been enjoined to adopt to what has been described as six-step approach in the case of HKSAR v Yusuph at [2021] 1 HKLRD 290.

11.  As far as the factors the court should consider when determining whether there should be deduction or exercise of discretion for self-consumption, one should look at the quantity and value of the drugs, the overall circumstances in which the drugs were found and the items such as the packaging, location and presence of drug-consuming paraphernalia, also whether the defendant is an addict of the drug and any explanation offered by the defendant on arrest or later and combined with the defendant’s means.

12.  Now the approach I shall adopt in this particular case is as follows. It would appear that, as I said, a mathematical starting approach would lead to a combined starting point for both offences, that is probably best approached in that way, of 47 months’ imprisonment taking purely the mathematical approach of the quantity of drug.

13.  This case is also subject to an aggravating factor. The defendant has a previous conviction in 2018 for trafficking in a dangerous drug. This would appear to show a failure of that previous conviction sentencing to deter the defendant from committing offence this time. It is an aggravating factor and needs to be expressed in the sentence. Now this would cause, in my view, an uplift of 6 months to the existing starting point leading to a provisional starting point at 53 months’ imprisonment.

14.  I now need to consider whether the defendant has sufficiently established that there should be a deduction from that starting point having regard to his avowed self-consumption of the drug. The defendant is self-described on arrest and after arrest as a drug addict. This is to a certain extent supported by a urine test. Defendant also has a criminal record for trafficking in drugs, certainly a criminal record in relation to drugs. The defendant at the time said the drugs were for his own consumption. He had the means to purchase the drugs and the drugs were broken down in such a way they could be used for individual consumption. The quantity of drugs is not huge by the standards of this court. I consider that the defendant has factually established that I can exercise my discretion to have a deduction from that sentence on the grounds of his self consumption of the drug.

15.  I shall assign the percentage of something roughly around the figure of 15 per cent which leads to a deduction of 8 months from the starting point that I now have, which reduces the sentence now to one of 45 months’ imprisonment.

16.  The defendant has indicated a plea of guilty from an early stage. He is entitled to further one-third deduction from that figure. This leads to a final overall figure of 30 months’ imprisonment. I shall order that that be the sentence on the first charge, one of 30 months’ imprisonment. On the second charge, I shall order a sentence of 16 months’ imprisonment. I shall, however, order that the sentences shall run concurrently to a total of 30 months’ imprisonment. So, to confirm that, Charge 1, 30 months, Charge 2, 16 months, both sentences to be served concurrently to an overall total of 30 months’ imprisonment.