HKSAR v. CHENG TSZ HIN

DCCC 62 / 2022

[2022] HKDC 1392

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 62 OF 2022

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REASONS FOR SENTENCE

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1.  The Defendant pleaded guilty to a single charge of “Trafficking in dangerous drugs”, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap. 134, Laws of Hong Kong

Summary of facts

2.  On 20 October 2021 at around 8:26 pm, PC 22027 spotted the Defendant acting furtively at the rear passenger seat of a taxi (registration mark CX9668)  during a snap check at Dundas Street, near the junction of Tung On Street in Yau Ma Tei.

3.  Upon a body search, the officer found two resealable plastic bags (Exhibit 1 and Exhibit 2)  between the Defendant's waist and underpants. They were later confirmed by Government Chemist to contain the following items:-

(a)  Exhibit 1 contained 25 resealable plastic bags containing a total of 4.55 grammes of solid containing 2.9 grammes of cocaine (Exhibit 3);

(b)  Exhibit 2 contained (i)  13 resealable plastic bags containing a total of 8.59 grammes of solid containing 7 grammes of ketamine (Exhibit 4); (ii)  one piece of tissue paper wrapping 3 plastic bags containing a total of 2 grammes of solid containing 1.31 grammes of ketamine (Exhibit 6); and (iii)  two pieces of tissue paper wrapping 4 plastic bags containing a total of 0.74 grammes of solid containing 0.46 grammes of cocaine (Exhibit 8).

4.  The Defendant was arrested for the offence of "Trafficking in Dangerous Drugs". He was also found to have HK$4,969 cash and two mobile phones on him.

5.  The cocaine and ketamine seized had an estimated market value of HK$3,600 and HK$5,500 respectively.

6.  The Defendant admitted he possessed the drugs in question for the purpose of unlawful trafficking.

Background and Mitigation

7.  The Defendant is single and has a clear record.

8.  He was educated up to Form 5 and is now 22 years old. He lived with his parents prior to his arrest.

9.  The Defendant used to work as a waiter in a restaurant and he contributed regularly to his family expenses. As he was often required to work long hours and, sometimes, 7 days a week, he had little time for a social life.

10.  In his mitigation letter, he expressed his remorse for committing the offence and regretted for disappointing his parents and friends. He attributed his wrongdoing to the difficulty in making ends meet and promised to mend his way in future. His colleagues at the restaurant also wrote to the court describing the Defendant as a diligent and responsible person. They were shocked to learn of the offence and pleaded for leniency on his behalf.

Sentencing considerations

11.  The sentencing guidelines for trafficking in heroine are applicable to cocaine, AG v Pedro Nel Rojas [1994] 1 HKC 342. It follows that trafficking in up to 10 grammes of cocaine will attract a sentence of between 2 and 5 years’ imprisonment after trial, R v Lau Tak Ming & Ors [1990] 2 HKLR 370. By way of mathematical calculation, trafficking in 3.36 grammes of cocaine will produce a starting point of 3 years’ imprisonment.

12.  As to trafficking in ketamine up to 10 grammes, it will attract a sentence of between 2 and 4 years’ imprisonment after trial, Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1. By way of mathematical calculation, trafficking in 8.31 grammes of ketamine will produce a starting point of 3 years and 7 months’ imprisonment.

13.  However, the above sentencing guidelines are based on the role of a courier or storekeeper, which is considered less culpable, HKSAR v Herry Jane Yusuph [2021] 1 HKC 458. I have carefully considered the circumstances of the case and come to the view that the Defendant was merely a courier at the time, and I will apply the guidelines accordingly.

14.  For trafficking of more than one kind of drugs, there are two sentencing approaches open to the Court, namely, the Individual approach and the Combined approach, HKSAR v Yip Wai Yin and Another [2004] 4 HKC 367.

15.  If the Individual approach is adopted, based on the calculations above, the starting point for the aggregate of the two drugs will be one of 6 years and 7 months’ imprisonment.

16.  On the other hand, if the Combined approach is to be used, the calculations under the various tests for cross checking are as follows: -

(a)  (Absurdity test)  The total quantity of narcotic in this case is (3.36g + 8.31g)  11.67 grammes and if the same were to be treated as cocaine, it would attract a starting point of 5 years and 1.5 months’ imprisonment and, on the other hand, if they were all ketamine, it would produce a starting point of 4 years and 1 month’s imprisonment.

(b)  (Conversion test)  If the ketamine were converted into cocaine, on the basis that 1.35 grammes of ketamine is equivalent to 1 gramme of cocaine, (8.31g x 1/1.35 = 6.15g), it would add up to (6.15g + 3.36g)  9.51 grammes of cocaine and attract a starting point of 4 years and 10 months’ imprisonment.

(c)  (Ratio test)  As cocaine comprises of 28.8% of the total narcotic while ketamine comprises of 71.2%, the test will produce a starting point of [(28.8% x 5 years 1.5 months)  + (71.2% x 4 years and 4 months)] 4 years and 6.7 months’ imprisonment.

17.  In the context of the present case, I find that the Combined approach is more likely to achieve a sentence which is fair and just. To that end, I will take the more ‘potent’ drug, i.e., cocaine, as the base and adjust the starting point of 3 years’ imprisonment for the 3.36 grammes of cocaine upward to 4 years and 9 months’ imprisonment to reflect the significant quantity of ketamine involved. 

18.  The fact that Defendant trafficked in 2 different types of drugs should be treated as an aggravating factor “because in such a situation the trafficker is able to cater to a far wider market than the trafficker in only one kind of drug”, HKSAR v Wan Lau Mei, CACC  389/2013. I consider 3 months’ enhancement is appropriate in the present case and hence increase the starting point to 5 years’ imprisonment.

19.  While I do not find anything in the personal circumstances of the Defendant that justifies a reduction in sentence, he is still entitled to the 1/3 discount for his timely plea of guilty and that reduces the sentence to one of 3 years and 4 months’ imprisonment.

Sentence

20.  The Defendant is sentenced to 3 years and 4 months’imprisonment.