HKSAR v. CHEUNG YAN KIN

DCCC 370/2018

[2018] HKDC 1599

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 370 OF 2018

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REASONS FOR SENTENCE

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1.  In the afternoon of 16 January 2018, police stopped two men (one of them is D2) coming out of a hotel room in Quarry Bay, which led to the discovery of drugs (12.6 grammes of a solid containing 12.3 grammes of cocaine) in that hotel room and subsequent investigation revealed that the hotel room in question had in effect been used as a place for drug abusers to consume drugs.

2.  Inside the room, the police first woke D1 out of his afternoon nap, who later admitted inter alia, ownership of the drugs found; he was the person who rented the room; he bought the drugs for $5,000 to share among friends etc.

3.  Police found the cocaine on the bedside cabinet which was put in 64 separate plastic bags in one plastic bag along with another plastic bag containing 807 plastic bags, two lighters, one electronic scale and a straw. While on the bed, police found a plastic bottle with an inserted straw and two lighters.

4.  D1, a 26-year-old man, pleaded guilty to one count of trafficking (charge 1) (his other two charges of smoking/inhaling drugs (charges 2 & 3) are left on court’s files) while D2 admitted to inhaling ice (charge 4).

5.  Unlike D2’s case, D1’s sentence can be dealt with straightaway without first having to call for a DATC report.    

6.  The defendant, single, has amassed 8 prior convictions over the past 8 years, 6 of which are to do with drugs (none is trafficking), one wounding and one assaulting police officer, but all of the sentences meted out are DATC order.

7.  The heard court that the defendant used to be a construction site worker, but was out of job at the time of the offence. In his interview with the police, D1 told the officers that he did not charge his friends for the use of the drugs in question (D2 paid him $200 only as a token of appreciation), the drugs were delivered to him by a taxi together with the numerous plastic bags and an electronic scale which would be given back to the person in their next drug deal. He further told the police that he had rented the room for 3 days at the cost of $700 a day.

8.  The result of urine test conducted on D1 after he was taken into custody following his arrest showed positive on cocaine.

9.  The street value of the drugs seized in question is estimated to be about $15,850.

10.  Counsel for D1 took the court through briefly the defendant’s background, then submitted a letter from him and his father, and also one from a religious organisation.

11.  In his letter, the defendant expressed remorse for what he did and promised he would stay away from his dubious peers by finding a decent job after release from prison. His father said that his son had learned a lesson and pleaded leniency on his behalf.

12.  The church people said that “the defendant is receptive to their religious directive and admitted that he was totally wrong. He is sorry for what he did. He is willing to make a change.”

13.  Defence counsel also submitted that one-third or less of the drugs was for his personal use and asked the court to give a further reduction in sentence on that ground. The court made it clear that on the evidence before the court, it is not prepared to accept the defendant’s assertion, but is willing to hear further evidence to determine the issue. But defence told the court that it wouldn’t be necessary.

14.  On the evidence before the court, the hotel room was clearly operated by someone as a place for drug abusers to come over to consume drugs there.  And I believe D1played a major role in managing such a place. Whoever behind this drug business, in my view, would not give a significant amount of the drugs to D1 for his own use while doing the business for them because this wouldn’t make much of a business sense.

15.  Anyway, the fact that he had prior convictions relating to drugs plus the positive urine test result, the court is prepared to view that he might have some personal use of the drugs in question, not a significant proportion though. For that matter, I would knock a few months off.

16.  For trafficking between 10 grammes and 50 grammes of cocaine, a term of 5 to 8 years is to be considered. For the amount of cocaine he admitted to trafficking (12.3 grammes), I take 62 months as the starting point, deduct 3 months for the fact that he might have some personal use of the drugs and give one-third discount for his timely plea, the term is reduced to 39 months.

17.  There being nothing else for a further reduction, D1 is therefore sentenced to 39 months’ imprisonment.