HKSAR v. CHAN YUK CHEUNG

DCCC 131/2024

[2025] HKDC 325

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 131 OF 2024

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to two counts of Trafficking in a dangerous drug (the 1^st and 2^nd charges), contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134, and one count of Possession of an apparatus fit and intended for the inhalation of dangerous drugs (the 3^rd charge), contrary to section 36(1)  and (2)  of the same ordinance.

Facts

2.  Around 10:13 am on 5 September 2023, the defendant was seen walking out furtively from the lobby of Tat Cheung House, Po Tak Estate in Sau Mau Ping by police officers on an anti-narcotics operation.  As police officers were approaching the defendant, they saw something white drop from his fist to the ground.  One of the police officers immediately picked up the object and found that it was a lump of tissue paper with a transparent resealable plastic bag wrapped inside.  This plastic bag contained 35 pellets which were subsequently confirmed by the Government Chemist (GC)  to be 8.01 grammes of a mixture containing 5.98 grammes of heroin hydrochloride (subject matter of 1^st charge).

3.  The defendant was handcuffed for attempting to flee.  A search revealed that he had 3 keys, a mobile phone and cash of HK$830 on his person.

4.  The defendant was arrested for trafficking in a dangerous drug.  Under caution, he said that the 35 pellets of drugs were to be handed to others for distribution, and that he would receive HK$200 as remuneration for the job.

5.  Around 10:22 am, the defendant was escorted back to his home at Room 101 of Tat Cheung House.  With a search warrant and a key found on the defendant, the police entered the defendant’s home for a search.

6.  In a drawer under the bed, the police found a white plastic box containing a transparent resealable plastic bag with red lines containing what was later confirmed by the GC to be 7.05 grammes of a mixture containing 5.25 grammes of heroin hydrochloride (subject matter of 2^nd charge).  In a shoe box next to the bed was a glass bottle with 2 plastic straws inserted in it (“the bottle”, subject matter of 3^rd charge).

7.  The police also found: i)  a lighter, 5 pieces of aluminium foil and a piece of construction paper on a table, ii)  a large quantity of transparent resealable plastic bags with red lines in another drawer under the bed, and iii)  a digital scale on a shelf at the end of the bed.

8.  When arrested and cautioned for trafficking in the drugs found in his home, the defendant admitted that they were dangerous drugs and were for his own consumption.  In relation to possession of the glass bottle, the defendant said it had been left behind by a friend of his about a year ago.

9.  In a subsequent video-recorded interview, the defendant admitted under caution that he had been given those 35 pellets of heroin by a man called “Lo Sai” and instructed to pass the pellets to someone he did not know; he would get a remuneration of $200 for each delivery.  He was about to make the delivery when he was arrested.  The drugs in the transparent bag found under his bed were for his own consumption.  The small pieces of tin foil were used for consumption of heroin.  The bottle had been left behind by a friend almost a year ago.  The digital scale was for weighing meat.  The transparent resealable plastic bags were for carrying coins.

Defendant’s Background

10.  The defendant is 72 years old.  He is divorced with no children.  He lives by himself in a public housing unit in Po Tat Estate.  He is unemployed and receives CSSA monthly payments of $4,500.  He claims that he has been on heroin for 40 years.

11.  He has 7 previous convictions, all but one of them are drug-related.  He has 4 convictions for trafficking in dangerous drugs.

Mitigation

12.  Defence counsel Mr.  Andrew Leung pointed out that the tariff for heroin trafficking set out in R v Lau Tak Ming [1990] 2 HKLR 370 is applicable and listed the various bands of sentences under the tariff.

13.  He submitted that the defendant was merely a courier.  Mathematically calculated, for the 1^st charge involving 5.98 grammes, the sentence should be 3 years 9 months’ imprisonment; for the 2^nd charge involving 5.25 grammes, the sentence should be 3 years 6 months; and for their combined amount of 11.23 grammes, the sentence should be 61 months.

14.  Part of the heroin found in the defendant’s home was for his own consumption. The defendant was a drug dependant at the material time and was in the habit of taking about 1 gramme of heroin a day.  About 4 grammes of this lot of heroin were for his own consumption.  The remainder of the lot would be delivered to others in accordance with instructions.

15.  The defendant would pay for his addiction by delivering heroin for the supplier, who would charge him a price cheaper than the market price, and would allow him to consume an amount that was in accordance with the amount of heroin delivered by the defendant.

16.  Referring to HKSAR v Wong Suet Hau [2002] 1 HKLRD 69 and HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, Mr.  Leung submitted that if the Court was satisfied that a “significant proportion” of the drug was for the defendant’s own consumption, the Court could reduce the starting point of sentence by 10-25%.  He also set out paragraph 34(3)  of Wong Suet Hau’s judgment for the factors to be considered in deciding whether to accept the contention that a significant proportion of the drugs is for self-use, and paragraph 19 of Chow Chun Sang’s judgment for the factors to be considered in deciding the extent of discount.

17.  In support of the claim that a significant proportion of the heroin in this case was for the defendant’s own consumption, Mr.  Leung pointed to the following factors:

(i)  the defendant’s drug-related record;

(ii)  urine sample taken from the defendant 2 days after his arrest tested positive for heroin;

(iii)  the heroin found at home was not individually wrapped as small pellets but was contained in one plastic bag;

(iv)  such drugs were found in the defendant’s bedroom rather than on the defendant’s person when he was away from home;

(v)  the lighter and the aluminium foils were used for inhaling the drug;

(vi)  the defendant’s admission to the police is consistent with his self-consumption claim;

(vii)  the defendant could offset his expenditure on drugs with his reward for delivering the drugs.

18.  Of the amount of heroin found in the defendant’s home, 4 grammes would be about 75% of the lot.  Of the amount of heroin found in this case, ie 15.06 grammes of mixture containing 11.23 grammes of heroin, 4 grammes would be about 35%.  In either case, the amount for the defendant’s own consumption would constitute a significant proportion.

19.  With regard to the 3^rd charge, Mr Leung submitted that the usual sentence is 3 months’ imprisonment after plea.

Sentencing considerations

20.  This case concerns only one type of dangerous drug, ie heroin.  The 1^st charge is trafficking in 5.98 grammes of heroin, while the 2^nd charge is trafficking in 5.25 grammes of the same drug.  The appropriate sentencing band in the Lau Tak Ming tariff for both charges is that of 2 to 5 years’ imprisonment.  According to arithmetical calculations, the starting point would be 3 years 10 months for the 1^st charge, and 3 years 7 months for the 2^nd charge.

21.  Given the proximity in time and location of these two offences, a fair and realistic way of assessing the defendant’s culpability for his involvement in these two offences is by assessing the sentence for trafficking in the combined quantity of the drug in both offences, ie 11.23 grammes of heroin hydrochloride.  For this quantity, the appropriate sentencing band in Lau Tak Ming is 5 to 8 years’ imprisonment for trafficking in 10 to 50 grammes of the narcotic.  As Mr.  Leung correctly pointed out, the starting point for trafficking in this quantity is 61 months’ imprisonment.

22.  Apart from the defendant’s guilty pleas, the defence also relies on self-consumption as a mitigating factor.  The defence asserted that 4 grammes of the heroin found in the defendant’s home were for his own use.  Mr Leung clarified that he was referring to 4 grammes of the mixture instead of 4 grammes of the narcotic.

23.  Given the defendant’s urine test result, his drug-related conviction records and the presence of tin foils and a lighter in his home, I am satisfied that the defendant was a drug dependant at the time of the offences.

24.  However, I am sceptical about the quantity of heroin claimed to be for the defendant’s own consumption.  I should add that the prosecution does not accept that 4 grammes were for the defendant’s own consumption.

25.  The drug found in his home was contained in a transparent plastic bag inside a plastic box in a drawer under the bed.  In another drawer under the bed was a “large quantity”[1] of transparent resealable plastic bags.  At the end of the bed was a digital scale.

26.  I do not accept that what the defendant told the police about the use of the plastic bags (ie for carrying coins)  and the digital scale (ie for weighing meat)  was true.  The digital scale and the plastic bags are certainly items fit and, in the circumstances of this case, intended for use in splitting a quantity of drug into smaller-weight lots and for packaging of the smaller lots of drugs respectively.  Regarding the drug found in the defendant’s home, I see the indicia of trafficking, but I do not see any signs of 4 grammes or any part of the drug being earmarked in any way for the defendant’s own use.

27.  There is, of course, the defendant’s admission to the police both under verbal caution at the time of his arrest and in a subsequent video-recorded interview that the drug found in his home was for self-consumption.  Given his guilty plea to the 2^nd charge, those admissions are certainly not true.  In his admissions, he made no mention that some of the drug was for his own consumption.

28.  If indeed 4 grammes were for his own use, given that the estimated market value of all the heroin seized ie 15.06 grammes of mixture containing 11.23 grammes of heroin was about $8,200, 4 grammes of the mixture would have a market value of about $2,178 ($8,200 x 4/15.06).  The defence asserted that 4 grammes would last for 4 days of consumption.  In other words, the defendant’s monthly expenditure on his drug-taking would amount to about $16,335 street value of heroin.  Such a cost would be way above the defendant’s means.

29.  I am mindful of the assertion by the defence that the drug supplier would not only give the defendant a discount in price but would also offset what the defendant would have to pay for the drugs with the defendant’s rewards for conveying the drugs for him.

30.  When asked why the defence said 4 grammes (instead of any other quantity)  were for self-consumption, Mr Leung told the court that that was what the defendant “envisaged” from his past experiences.  He further told the court that the defendant would make 4 deliveries a day to earn his drugs from the supplier.  However, the defendant would not be giving evidence in support of his self-consumption claims.

31.  In HKSAR v Cheung Wai Man [2019] 1 HKLRD 817, the Court of Appeal had this to say:

“54. We would stress that it is fundamental that a claim of self-consumption needs to be established to the sentencing court’s satisfaction. There is a real danger of abuse in this avenue of mitigation, hence a sentencing court must have proper factual and evidential basis in accepting the contention that a ‘significant proportion’ of the drugs were for the defendant’s own consumption. Mere assertions by counsel from the bar table, unless agreed or not in dispute or contention, will generally not suffice. The prosecution also has an important role to play in assisting the court in resolving such a claim. If the prosecution has information and material that addresses the claim one way or the other, they should ensure that the court is appropriately informed of it. It is therefore important for a defendant in making a claim of self-consumption to put before the court credible and reliable information and material in an acceptable form.”

32.  I am not satisfied that as much as 4 grammes of the drug seized in this case were for the defendant’s own consumption.  It seems to me that the defendant was just making up a figure in order to convince the court that a significant proportion of the drug was for his own consumption.

33.  However, I consider it possible that a small part of the drug was for his own use.  Exercising my discretion, I will give 4 months’ reduction in sentence for this self-consumption aspect.

34.  Had both lots of heroin been included in one single charge of trafficking, the starting point of 61 months’ imprisonment, so reduced, would become 57 months.  The defendant’s guilty plea would further reduce it by one-third to 38 months.

35.  The defendant will receive concurrent sentences of 38 months’ imprisonment on each of the 1^st and 2^nd charges.

36.  The usual sentence for possession of an apparatus fit and intended for the inhalation of dangerous drugs is 3 months after plea.  I see no reason to depart from this usual sentence, and I sentence the defendant on the 3^rd charge to 3 months’ imprisonment.  This sentence is to be served concurrently with the sentence for the 2^nd charge.

37.  The defendant will therefore serve a total sentence of 38 months for all 3 charges.