HKSAR v. CHENG CHI HO

HCCC 41/2019

[2019] HKCFI 2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 41 OF 2019

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

On 28 March 2018, Mr Cheng Chi-ho, the accused, was arrested for trafficking in cocaine in Reclamation Street in Mongkok. The accused was taken before a magistrate and on 11 February 2019, he was committed for sentence to this court on the basis of the charges set out on pages 22 to 23 of the record.

The Charges

The charges upon which the accused was committed are as follows:

Trafficking in a dangerous drug, contrary to section 4 of the Dangerous Drugs Ordinance, Chapter 134. The particulars of this charge alleges that outside 279 Reclamation Street in Mongkok, the accused trafficked in 23.8 grammes of a solid containing 21.7 grammes of cocaine.

2nd charge, trafficking in a dangerous drug, contrary to the Dangerous Drugs Ordinance. The particulars of this charge alleges that on 28 March 2018, at 279 Reclamation Street in Mongkok, the accused unlawfully trafficked in 95.6 grammes of a solid containing 85.4 grammes of cocaine.

Admitted Facts

In the course of the committal proceedings, the accused also admitted a set of facts. In essence, these facts assert that just after midnight on 28 March 2018, police officers were on patrol in uniform together with one plainclothes officer in the vicinity of 279 Reclamation Street. One of the officers saw the accused who appeared to be somewhat nervous when coming out of the building at that address. The accused was intercepted by the police.

In the course of the enquiry by the police, they noticed that the accused dropped a bag. That bag was examined and found contained 23.8 grammes of a solid containing 21.7 grammes of cocaine. Accordingly, the accused was arrested and cautioned. In answer to the caution, the accused asked for a chance.

The accused was then taken to a police vehicle where a search was undertaken. The result of that search produced four plastic bags around the accused’s back and waistband of his trousers. Contents of the four plastic bags was a crystalline solid which was found to be 95.6 grammes of a solid containing 85.4 grammes of cocaine. Following this discovery, the accused was cautioned by the police. He remained silent under caution. The accused was also found to have $11,527.10 in his possession.

The accused underwent a video-recorded interview later on. He again remained silent.

It is agreed that the estimated street value of cocaine in powder form was $1,009 per gramme. Accordingly, the total value of the cocaine seized in relation to the two charges was about $24,000 in relation to Charge 1 and $96,000 in relation to Charge 2.

By his plea of guilty and his acceptance of the facts, the accused admits that he was trafficking in the drugs found in his possession.

Background, Antecedents and Mitigation

At the day of the arrest, the accused was age 37. He was born in Hong Kong and is the holder of a Hong Kong permanent identity card. The accused was educated up to third-grade in secondary school and was, apparently, unemployed at the time of the arrest. He is a married man with one son living in Hong Kong. The accused has no previous convictions relating to drugs and the most recent conviction was betting with a bookmaker in 2016 for which he was fined.

Counsel for the accused, Mr Victor Ho, submitted that the accused is deeply remorseful and has learnt a hard lesson. I am informed that the accused fully understands that the nature of his conduct will attract a substantial prison sentence which will affect not only him but his family as well. That is, perhaps, a positive note in this case. In a letter from the accused himself, he recognizes the impact on his family and that already in prison, he has sought strength and guidance from one of the pastors of the Christian faith who attend in prison. He says that he has already kicked the drug habit which is also a positive note in this case.

The second major component of the submissions in mitigation is the assertion that 20 per cent of the quantity possessed by the accused was for his own personal consumption. There is good circumstantial support for the accused being addicted to cocaine, as there is evidence that the accused had cocaine in his urine some two days after his arrest.

Counsel for the accused says that he had brought cocaine and was going to sell it to support his habit and retain a portion of the stock he had acquired for his own consumption. The court pressed counsel for the accused as to the quantity to be reserved for self‑consumption, the essence of the questioning being to the effect that at first blush and assertion of the proportion being retained for self‑consumption being 20 per cent sounded like a somewhat high proportion, and counsel slightly retreated and suggested maybe it was not 20 per cent and that he largely left the issue to the court’s discretion. The position of the prosecution is that it is not prepared to accept a proportion as high as 20 per cent being earmarked for self-consumption but conceded some might possibly be reserved for that purpose. Counsel for the prosecution made the point that until the matter unfolded in this court, there had been no mention of a proportion being reserved for self-consumption. Nevertheless, counsel accepted that the presence of cocaine in the urine test administered to the accused in prison some two days after arrest was circumstantial support for the proposition of the accused was an addict.

Sentencing Principles: Sentencing for Trafficking in Cocaine

For many years, the community of Hong Kong has taken a severe view of drug trafficking - particularly in relation to drugs such as cocaine. It is easy to see why. This drug has terrible consequences for the individual. It is addictive. Ridding oneself of that addiction is, to say the least, an arduous process and sadly, history demonstrates that an attempt to rid oneself of an addiction to cocaine is fraught with instances of disappointment. However, there are also serious consequences for the community. One of those involves the deployment of medical and health facilities to help people who become addicted to these drugs. There are consequences - sometimes serious ones - for the families of those persons who become addicted to cocaine.

The view of the community is reflected in the maximum sentence provided by section 4 of the ordinance. That provides for convictions on indictment that the maximum sentence is life imprisonment or a fine of $5 million. The view of the community is also reflected by the courts in the nature of the sentences and the levels of those sentences traditionally imposed for drug trafficking. The policy underlying the approach to sentencing for drug-trafficking cases is to impose a deterrent sentence. To this end, the courts have provided sentencing guidelines for various forms of dangerous drugs, including the drugs subject of the charge in this case.

The source of guidelines in relation to the trafficking of cocaine starts with the decision of the Court of Appeal in R v Lau Tak Ming & Other [1990] 2 HKLR 370. Further, in Attorney General v Rojas [1994] 1 HKC 342 and R v Chang Chen Liu Sa [1994] 3 HKC 685, the Court of Appeal declared that the guidelines in R v Lau Tak Ming & Others (above) were appropriate for cocaine. The correctness of guidelines in relation to cocaine was confirmed in the decision of the Court of Appeal in HKSAR v Abdallah [2009] 2 HKLRD 437.

The applicable sentencing guidelines provide for a sentence of quantities between 50 and 200 grammes of cocaine to attract a sentence, if the accused have been convicted after trial of between 8 and 12 years.

Portion for Self-consumption

The authorities clearly recognize that on a trafficking in dangerous drugs charge, the possession of some of the drugs subject of the charge for self-consumption can be a mitigating factor. That may be seen in R v Chan Mung Lung [1992] 2 HKCLR 127, HKSAR v Wong Suet Hau [2002] 1 HKLRD 69 and, more recently, in HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, which makes plain that the possession of dangerous drugs is in itself a serious offence and there is also the issue of “latent risk” to consider.

There are a number of factors outlined in HKSAR v Wong Suet Hau (above) which assist in the evaluation of the assertion that part of the drugs in question were for personal consumption so far as that affects sentence. The factors outlined in that case are:

(1) Generally speaking, if it is accepted that a portion of the drugs concerned were for self-consumption, the downward adjustment of sentence to reflect this should be a broad-based evaluation.

(2) The evaluation should be informed by the fact that possession of dangerous drugs is itself an offence and carries with it a possible term of imprisonment.

(3) The part of the drugs, the subject of the charge, which are accepted for self-consumption of the accused should also take into account what is often characterized as the “latent risk” factor (see: HKSAR v Mok Cho Tik [2001] 1 HKC 261) which takes into account the risk that some of the drugs intended for self‑consumption may nevertheless find their way into the hands of others.

(4) The court in evaluating whether some part of the drugs, the subject of the charge, are for self‑consumption and, if so, the proportion of such drugs must act judicially and in accordance with the laws governing the burden and standard of proof in relation to matters advanced in mitigation.

In addition, the Court of Appeal identified a number of practical indicia to determine whether there was force in the assertion that a portion of the drugs might be for self‑consumption. Perhaps the critical point made by the Court of Appeal is that the proportion for self-consumption had to be a significant proportion.

The Court of Appeal in HKSAR v Wong Suet Hau clearly implied that what was a significant proportion was not simply a proportion greater than a trivial amount of drugs to be reserved for that purpose. Anything less than a significant proportion being retained for self-consumption would make no or practically very little difference to sentence. (See: Stuart-Moore VP in HKSAR v Wong Suet Hau (above) at paragraph 34(1).) That point was made in HKSAR v Chow Chun Sang (above) where Yeung VP held:

“We are of the view that in drug trafficking cases, when all or part of the drugs are intended for the trafficker’s own consumption, the ensuing discount to sentence should, depending on the circumstances, fall somewhere between 10 per cent and 25 per cent of the basic starting point. In determining the extent of discount in a particular case, the court should have regard to factors including the total quantities of drugs involved, the proportion of drugs intended for self-use, the nature of the drugs, whether the drug trafficking was for financial gain, whether the trafficking was organized and premeditated in the background and criminal record of the defendant.”

Plainly, when one factors the sentence for possession and the enhancement that would be justified by reason of “latent risk” in virtually all cases, it would clearly take a significant proportion of drugs to be for self-consumption to justify a discount of in the range of 10 to 25 per cent. In HKSAR v Tam Ming Luen [2016] 2 HKLRD 572, the point was reinforced because the Court of Appeal there specifically restated that such a discount would only be available for cases where a significant proportion of the dangerous drugs in which the defendant trafficked was for self-consumption. Finally, in HKSAR v Liu Ming Sze [2017] 1 HKLRD 297, after an extensive review of the authorities, the Court of Appeal concluded that proportions for self-consumption of up to 10 per cent would not qualify for that kind of discount in HKSAR v Chow Chun Sang (above). (See: paragraph 28 of the report) The factual context of this case is very important to understand the point being made by the Court of Appeal. The complaint on appeal was that the sentencing court had given a discount below 10 to 25 per cent range as HKSAR v Chow Chun Sang. The quantity of drugs accepted for self‑consumption in that case was up to “10 per cent”. Accordingly, it is hardly surprising that such a proportion was unlikely to attract discounts of the magnitude suggested in HKSAR v Chow Chun Sang. The court in HKSAR v Liu Ming Sze refused the applicant leave to appeal and, it left undisturbed the notion of some discount being given for that proportion of drugs.

Discount for Plea of Guilty

The well accepted principles of sentencing recognize that where an accused person pleads guilty at the earliest practicable moment that a discount from the appropriate starting point of 33 per cent would be applicable.

Application of Sentencing Principles

In my view, it would be just in the circumstances of this case to aggregate the quantity of cocaine in each charge. That means that, subject to the issue of personal consumption, the accused will be sentenced on the basis that he trafficked in 107.1 grammes of cocaine. As will shortly appear, to meet that objective, I intend to impose the same sentence on each count and make it concurrent. It would be inappropriate to adopt a wholly linear calculation of the basis of the range in this sentencing band. For this aggregate, I think a starting point of 9 years and 5 months would be appropriate.

I am prepared to accept that a substantial portion of the drugs, the subject of this charge, was for personal consumption. The combination of the evidence suggestive of addiction, the urine sample two days after arrest and the uncontested assertion that this man intended to sell a proportion of the drugs and retain a proportion for himself leads me to that conclusion. Consistent with HKSAR v Wong Suet Hau (above), I do not think there is any necessity for a Newton hearing. I am not able to quantify with any real precision the proportion of cocaine in the possession of the accused which was for personal consumption. I am certain that the quantity for self‑consumption was not of the order of 20 per cent. I think it was substantially less than 20 per cent and was more likely to be in the range of 10 per cent to 20 per cent - but at the very much lower end of that scale. In my judgment, (making an allowance for the penalty for possession of such drugs and the adjustment in relation to the obvious and potent latent risk) the proportion for self‑consumption in this case is such as to make a difference to the sentence which the accused would otherwise receive.

The course I propose to adopt is to adjust the discount upwards to reflect that the proportion of drugs possessed by the accused were for self-consumption. The enhanced discount reflects that the cocaine possessed by the accused for self-consumption would constitute a potential crime and there would be a “latent risk” with the possession of such quantity. I judge that the appropriate discount for the plea of guilty and the possession of the drugs for self-consumption to amounts to 40 per cent.

The order of this court is that the accused be sentenced to a term of 5 years and 7 months on each count on the charge sheet. I order that the sentences run concurrently.