HKSAR v. CHEUNG CHUE HEI

DCCC 954/2018

[2019] HKDC 458

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 954 OF 2018

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REASONS FOR SENTENCE

1.  The defendant pleads guilty to two charges of trafficking in dangerous drugs, contrary to section 4 of the Dangerous Drugs Ordinance[1]. Full particulars of the offences are set out in the facts admitted by the defendant today.

Charge 1

2.  In summary at around 9:28 p.m. on 19 July last year when the police were conducting an anti-narcotic operation in Tai Koo Shing they saw a private car driven by the defendant stop outside Banyan Mansion, Harbour View Gardens, No. 24 Taikoo Wan Road. 

3.  The defendant alighted from the car and looked around at which time the police intercepted the defendant.  The police seized the car keys from the defendant and searched the car. 

4.  Inside the car the police found a silver re-sealable plastic bag containing 13.8 grammes of cannabis in herbal form and a black bag inside which was forty-eight plastic bags containing 10.30 grammes of a solid containing 8.89 grammes of cocaine; one plastic bag containing traces of cocaine and a bundle of bank notes totalling $15,600.

5.  $3,952.20 and a mobile phone were found on the defendant.

6.  The estimated street value of the cannabis was $2,801.40 and the cocaine was $12,184.90.

7.  Under caution the defendant admitted the drugs were cannabis and cocaine.

Charge 2

8.  The police also found on the defendant an electronic key card.  The defendant admitted the key card could access a locker on the 5th floor of Westlands Centre, No. 20 Westlands Road in Quarry Bay.  The defendant led the police to the locker inside which the police found a total of twenty-seven plastic bags containing 206.2 grammes of cannabis in herbal form. 

9.  The estimated street value of the cannabis was $41,858.6.

10.  Under caution the defendant admitted the drugs were cannabis.

11.  Nothing suspicious was found in a house search of the defendant’s home at South Wave Court, No. 3 Shum Wan Road, Aberdeen. 

Mitigation

12.  In passing sentence, I have carefully considered the written and oral submissions of Mr Marray together with the defendant’s mitigation letter in which he expresses his remorse and apologises to his parents who are in court to give support to their son. 

13.  I take into account the defendant has a clear record and that in 2015 and 2016 he served as a volunteer in the Neighbourhood Advice-Action Council helping teenagers to draw.   

Guidelines

Charge 1

14.  The courts have equated for sentencing purposes cocaine with heroin[2].  In R v Lau Tak Ming the Court of Appeal laid down guidelines for trafficking in heroin[3].  The court said that the sentence upon conviction after trial where the quantity of narcotic is up to 10 grammes is between 2 and 5 years’ imprisonment.    

15.  I am satisfied the proper starting point after trial for 8.89 grammes of cocaine is 4 years and 8 months’ imprisonment.    

Own use

16.  The defendant claims that part of the cocaine and the cannabis is for his own consumption.  Mr Marray says the defendant first started taking cannabis and then cocaine.  By the time of his arrest the defendant says he was taking 1 gramme of cocaine per day. 

17.  The defendant is unable to quantify how much of the cocaine was for his own consumption.  The defendant says that he would keep some of the packets of cocaine for his own use, around 15-20% of the cocaine.  The defendant is also unable to quantify how much of the cannabis was for his own consumption.

18.  Mr Marray relies on the result of the urine sample collected on the defendant’s admission to Lai Chi Kok Reception Centre showing positive for cocaine.  Mr Marray also informs the court that on arrest the defendant said that the drugs were for his own consumption. 

19.  The prosecution has no objection that part of the drugs was for the defendant’s own consumption.   Ms Tsui confirms that on arrest the defendant did say the drugs were for his own consumption.  This was not however confirmed in a subsequent video recorded interview when the defendant remained silent. 

20.  Considering the defendant was arrested at night in Tai Koo Shing whereas he resided in Aberdeen where nothing suspicious was found, I have reservations that part of the cocaine may have been for the defendant’s own consumption.  On the other hand, the result of the urine sample collected on admission to Lai Chi Kok Reception Centre supports that the defendant was consuming drugs at the time of his arrest. 

21.  In the circumstances I am prepared to accept that part of the cocaine may have been for the defendant’s own consumption.  I do not however accept that as much as 15-20% of the cocaine was for the defendant’s own consumption.

22.  Taking into account the urine test for cannabis was negative and the cannabis was stored in a locker and not at the defendant’s home, I do not accept that any of the cannabis was for the defendant’s own consumption.  

23.  Mr Marray having taken further instructions from the defendant informs the court that the defendant does not wish to give evidence in support of his claim that 15-20% of the cocaine was for his own consumption and that part of the cannabis was for his own consumption. 

24.  In deciding how much weight should be attached to the fact part of the cocaine may have been for own consumption, I have considered the decision in HKSAR v Wong Suet Hau[4], in particular paragraphs 33 and 34 as applied in HKSAR v Chow Chun Sang[5] and HKSAR v Choi Chun Wo cited by Mr Marray[6].

25.  In Wong Suet Hau the Court of Appeal said that in most cases the difference will be slight[7].  From the decided cases a discount of between 10-25% from the basic starting point has been held appropriate where a significant proportion of the drugs were for own consumption. 

26.  In HKSAR v Cheung Wai Man the Court of Appeal said that in determining whether there was a significant proportion the sentencing court must have credible and reliable information and material[8].

27.  The assertion 15-20% of the cocaine was for the defendant’s own consumption is a mere bare assertion.  I am not satisfied that a significant proportion of the cocaine was for the defendant’s own consumption.

28.  Taking into account all the circumstances of the arrest; the latent risk factor and that possession of drugs carries a sentence in any event, I am satisfied that the starting point for 8.89 grammes of cocaine should be reduced by 3 months to 4 years and 5 months’ imprisonment, which is equivalent to a discount of just over 5%. 

29.  To be added to this is the cannabis.  I am satisfied the amount of herbal cannabis 13.80 grammes is not insignificant whereby this may be disregarded in determining the starting point.  In considering culpability, the starting point must reflect the defendant was trafficking in two different drugs. 

30.  In HKSAR v Yau Ka Ming the Court of Appeal said that the starting point for trafficking in ice and cocaine was to be enhanced by 3 months for the unlawful trafficking at the same time in 27.42 grammes of herbal cannabis[9].   

31.  I am satisfied for trafficking in 13.80 grammes of herbal cannabis the starting point should be enhanced by 1 month to 4 years and 6 months’ imprisonment. 

32.  Giving the defendant full credit for his plea of guilty reduces the sentence to 3 years’ imprisonment.

Charge 2

33.  In Attorney General v Tuen Shui Ming & another the Court of Appeal laid down guidelines for sentencing cannabis resin[10]. Where the quantity of cannabis is under 2000 grammes sentence is up to 16 months’ imprisonment.  The court further said that the tariff is to be adjusted for herbal cannabis which has a lower concentration of tetrahydrocannabinol than cannabis resin. 

34.  I am satisfied a starting point of 6 months’ imprisonment is appropriate for trafficking in 206.20 grammes of herbal cannabis. Giving the defendant full credit for his plea of guilty reduces the sentence to 4 months’ imprisonment.

Totality

35.  Having enhanced the sentence on charge 1 by reason of the fact that the defendant was also trafficking in cannabis, albeit a smaller quantity than charge 2 and that the cannabis in charge 1 was most likely from the same cache as the cannabis found in the locker, I am satisfied concurrent sentences are appropriate. 

Sentence

36.  The defendant is convicted and sentenced to concurrent sentences of 3 years’ imprisonment on charge 1 and 4 months’ imprisonment on charge 2.