HKSAR v. LEUNG CHI MING ERIC

DCCC 1445/2024

[2025] HKDC 1319

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1445 OF 2024

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REASONS FOR SENTENCE

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1.  The Defendant pleaded guilty to a charge of trafficking in dangerous drugs :-

(a) 13.16g of cocaine;

(b) 9.72g of ketamine.

Summary of facts

2.  At about 1am on 17 July 2024, the police intercepted a taxi in Wong Tai Sin which was driven by the Defendant for a search.

3.  A piece of tissue wrapping with two transparent re-sealable plastic bags containing 0.63g of a solid containing 0.59 g of cocaine was found in the storage compartment of the driver’s door.

4.  The Defendant was arrested for possession of dangerous drugs and admitted under caution that the “stuff” belonged to him.

5.  Other drugs were found inside the taxi:-

(a) Inside the sun visor at the driver seat, there were 20 plastic bags containing a total of 6.31g of a solid containing 5.80g of cocaine;

(b) Inside the cushion at the driver seat, there were 16 plastic bags containing 6.55g of a solid containing 6.04g of cocaine as well as 17 plastic bags containing a total of 11.7g of a solid containing 9.72g of ketamine.

6.  Upon body search:-

(a) A piece of white tissue paper containing 2 plastic bags containing a total 0.83g of a solid containing 0.73g of cocaine; and

(b) Cash in the total sum of HK$12,906 were found from the defendant’s person.

7.  Under caution, the Defendant admitted that the drugs belonged to him and the cash was his income as a taxi driver.

8.  There was no drug paraphernalia was found during a house search.

9.  The estimate street value of the cocaine:-

(a) HK$10,754 (in powder form) or;

(b) HK$15,007 (in crack cocaine form);

(c) HK$5,663 for ketamine;

(d) The total estimated value of the drugs was between HK$16,417 and HK$20,670.

Criminal record

10.  The Defendant had 14 convictions record between 1982 to 2006.

11.  Amongst them were mainly  records of gambling offences and 3 records of possession of dangerous drugs offences[1].

Background of the defendant

12.  He is 62, separated from his wife and is now living with his girlfriend with a 3 years old daughter who has medical issue required regular medical follow-up. The defendant got his taxi driver’s licence in 2019.

Sentence

13.  In the present case, there are 2 types of dangerous drugs being trafficked:-

(a) 13.16g of cocaine (packed into 40 bags);

(b) 9.72g of ketamine (packed into 17 bags).

14.  As such, the sentencing approach as set out in HKSAR v Islam Majharul[2] and HKSAR v Herry Jane Yusurp[3] are both applicable.

15.  Among the 2 types of drugs, the Defence accepted that the most serious drug in term of potency is cocaine. The correct base drug in determining the starting point is cocaine.

16.  The applicable sentencing bracket according to the relevant sentencing guidelines for the 2 types of drugs are as follow:-

(a) As far as cocaine is concerned, it was held in HKSAR v Huang Ruifang[4] 138 that the sentence for trafficking between 10-50g, it falls into the sentencing bracket of 5 to 8 years imprisonment. With a quantity of 13.16g of cocaine, the starting point is 5 years and 2.8 months.

(b) As far as ketamine is concerned, the tariffs were set in Secretary for Justice v Hii Siew Cheng[5]. It was held that the sentence for trafficking between 1 to 10g of ketamine, it falls into the sentencing bracket of 2-4 years. With a quantity of 9.72g of ketamine, the starting point is 3 years 11.3 months.

17.  I now come to deal with the culpability and the role of the defendant.  As said in the case of HKSAR v Herry Jane Yusurp, the role and culpability of the trafficker is an important consideration in identifying the starting point for this offence. The sentencing guidelines were intended for the couriers and storekeepers of dangerous drugs[6].

18.  The defence said that his role is no more than a courier. I disagree for the following reasons:-

(i) The 57 bags of drugs were pre-packed into small bags and they were ready for distribution and for re-sell.

(ii) The places that the defendant kept the 57 bags of drugs were all within the easy reach of the defendant. As soon as the defendant opened the driver’s window, he could simply hand out to others.

(iii) The demonization of the seized cash, a total of $12, 906 were mostly in banknotes, such as $500 (17 pieces), $100 (40 pieces), $50 (4 pieces), $20 (8 pieces) and $10 (5 pieces), the remaining $6 were all in coins.

(iv) As to other coins in the taxi, the defence further said that the defendant had a box of coin worth about $200, of which the police did not consider necessary to seize them.

(v) I suggest to hear evidence regarding this aspect of dispute. The defence informed me that the defendant elected not to give evidence and did not require the Prosecution to call evidence to clarify this point.

(vi) As such, the facts remains that the money seized at the material time was $12,906. Only $6 coins were found.

(vii) The defence said that his daily net earnings was about $1,000 to $1,200 and he kept the earnings for 7 to 10 days before he deposited them into the bank account. He also kept some of cash for emergency and for payment of gas and taxi rental. However, it still could not explain the facts why the defendant carried so much money with him. As a taxi driver, he needed a lot of coins for changes, not $6.

(viii) Under caution, the defendant said that the “stuff” belonged to him. That means all the drugs, altogether 57 packages belonged to him. The defendant also agreed to the summary of facts that the street value of the drugs was between $16,000 to $20,000. That accounts for a huge part of his earnings.

(ix) The defendant has a young family, his girlfriend is now in 43 and his daughter is only 1 year and 10 months old at the time of his arrest. His family must be important to him bearing in mind he has lost contacted with his 24 years old son from the first marriage.

(x) The defendant was about 60 at the time of the present offence. He is a mature man; he should have known that when he was arrested, his family would have suffered as they lost the financial support from him.

(xi) He also knew that to embark on these illegal activities, it carried a very high risk. The risk involved a term of imprisonment.

(xii) The question to ask, what motivated the defendant to take such a risk? The answer is simply straight forward, that is all about money. His earning as a taxi driver was not enough to cover the family expenses. He was the bread winner of the family. He had financial responsibility towards the family.

(xiii) It is clear to me that the 57 pre-packed bags of drugs were all for sale.

(xiv) With all these evidence before me, I conclude that he was a direct street trafficker. As said in paragraph 64 of the HKSAR v Herry Jane Yusurp case, “actual or direct trafficking of dangerous drugs to other on the streets is more serious than where a defendant’s purpose cannot be proved or explained”.

(xv) As such, the notional starting point of the sentence should be increased by 6 months.

19.  As to the 3 tests, the prosecution and the defence agreed of the results of the calculation as follow:-

(a) Absurdity test – 5 years and 11.6 months;

(b) Conversion test – 5years and 8.7 months[7];

(c) Ratio test – 5 years and 4.8 months.

20.  As such, I take 5 years and 2.8 months as the starting point and enhance the starting point by 2 months to take into account of the quantity of ketamine. That arrives 5 years and 4.8 months.

21.  I also enhance the notional starting point by 6 months to take into account of his role and culpability in committing the present offence. That arrives at 5 years and 10.8 months.

Aggravating factor

22.  There were 2 types of drugs being trafficked, it is an aggravating feature as the defendant can cater to wider marker and the 2 types of drugs can prolong the effect of the drugs.  I refer to HKSAR v Choy Wing Sing[8], paragraph 6.

23.  As such, I consider that a 2 months enhancement is appropriate.

24.  The total sentence arrives at 5 years and 12.8 months. I round down to 5 years 12 months (60 months).  As the Defendant pleaded guilty to the charge, he is entitled to 1/3 discount. The sentence comes down to 48 months, that is 4 years imprisonment.

Self-consumption

25.  Finally, I come to decide the mitigating factor of self-consumption:-

(a) The Defence said that a small amount of cocaine is for the Defendant’s self-consumption as the urine test report indicated a cocaine positive test result after his arrest.

(b) The Defendant has 3 previous convictions of possession of dangerous drugs.

26.  In the case of HKSAR v. Wong Suet Hau, Ice[9]  at paragraph 34 of the judgement which set out the factors to be considered whether the defendant is entitled to a claim of self-consumption. The prosecution objected to such a claim. On the other hand, I am informed that the Defendant will not give evidence in this regard.

(a) In the present case, the Defendant said that only a “small amount” is for his own use. That failed the “significant proportion” requirement as stated in the case of HKSAR v. Wong Suet Hau, Ice.

(b) The fact that the Defendant is a drug user can also be a drug trafficker. In the present case, there were a large number of individually packed cocaine and ketamine, which means they are ready for distribution and for sale.

(c) His last conviction of possession of dangerous drug was in 1998. Some 27 years ago, it simply has no bearing to support his claim.

(d) The Defendant said under caution that the “stuffs” belonged to him, not a small amount of drugs were for his own consumption.

(e) There was no presence of paraphernalia associated with drugs were found in the taxi or at his home.

(f) The Defendant is required to support his claim with reliable and credible evidence, not with bare assertion from the bar table. I refer to HKSAR v Cheung Wai Man[10].

(g) The Defence also refers me to a District Court case’s Reasons for Sentence of which a further deduction of 2 months’ imprisonment for such a claim. I would not comment on this case, as different outcome of the sentence turns on different facts. Further, the Defence agrees that the sentence of other District Court cases is not binding on me.

27.  With all these information in mind, I consider that the Defendant’s claim of self-consumption is not made out, he is not entitled to any further deduction of sentence.

28.  At last, I must say that the reason I refuse to exercise my discretion is because it will give the public a wrong message as trafficking in dangerous drugs is a very serious offence. It has such a negative and evil impact in our society, including the Defendant and his family. To exercise this discretion generously, it means to reduce the Defendant sentence, of which he is not entitled to.

29.  To this end, the Defendant is ordered to serve a sentence of 4 years imprisonment.