HKSAR v. SHIU MING CHEONG

HCCC 476/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 476 OF 2016

-----------------

-----------------

---------------------------------

Transcript of the Audio Recording
of the Sentence in the above Case

---------------------------------

COURT:

The defendant pleaded guilty to two counts of trafficking in dangerous drugs before a magistrate and was committed to the Court of First Instance to be dealt with.

In relation to Count 1, the defendant was intercepted by police officers on 25 March 2016 at around 9.20, outside Thai Kong Building in Wan Chai. Upon search, a total of 18 packets of suspected dangerous drugs were found from the defendant’s right back trousers pocket. They were later certified to contain a total of 26.58 grammes of a powder containing 17.13 grammes of ketamine and 1.76 grammes of a solid containing 1.64 grammes of cocaine. The two different types of drugs were separately packaged.

The defendant told the police officers that he was helping others to carry the drugs, that he was on his way to Sogo, the department store, to despatch the goods and that the money relating to the goods was inside his jacket. $5,000 in cash was in fact found from his jacket.

The defendant was arrested. Under caution, he told the officers that he knew where to get more goods from a storage place and that he had the key. The defendant led police officers to Flat E1 on the 8th floor of the nearby Thai Kong Building (hereinafter referred to as “the flat”). They entered the flat with the keys found on the defendant at around 1.27 am the following day.

Upon search, a total of 375 packets of suspected dangerous drugs were found inside the flat. They were later certified to contain a total of 1,232.03 grammes of a powder containing 874.63 grammes of ketamine and 12.6 grammes of a solid containing 11.3 grammes of cocaine. The two different types of drugs were separately packaged. Packaging paraphernalia, including scissors and an electronic scale, were also found.

The defendant was arrested again and said, under caution, that he had packed the dangerous drugs there the night before.

In two subsequent video-recorded interviews conducted on 26 March, the defendant gave more details about the drugs. He said he got to know a man he called ‘the boss’ in February 2016, who recruited him to pack and distribute drugs for $1,200 a day. On the day before his interception by the police, the boss called and told the defendant to collect some drugs at Shek Pai Wan at 12.30 am on 25 March. The defendant did so collect and also received three keys from an unknown male at the Shek Pai Wan minibus station.

As instructed, the defendant went to the flat in Thai Kong Building and packaged drugs there from 1 to 5 am on 25 March. He left for home afterwards. The boss called the defendant at around 5 pm later in the day and told him to bring some cocaine from the flat to Causeway Bay, Sogo, for distribution. The defendant was intercepted by police officers when he left the flat.

The street value of the seized ketamine and cocaine was, respectively, $171,171 and $15,336 as at March 2016.

The defendant is of previously clear record. He is 24, educated up to secondary 4 level in Hong Kong. He worked for a time as a kitchen staff, earning about $9,000 per month but had become unemployed since January 2016. The defendant is single and lives with his father and two brothers. His mother passed away in 2000 when he was 7 years old. The defendant committed the present offence because he needed the money.

Mr Chan, for the defendant, pointed out in mitigation that the defendant volunteered information leading to the discovery of the drugs in Count 2. But for that information, the drugs in the flat might not have been found. The defendant should be given credit for this mitigating factor.

Sentence

How to approach the two counts. The defendant, by his own admission, had packaged the drugs in the flat, carried them on his person and was on his way to Causeway Bay to despatch the packaged drugs when he was intercepted. I will regard the two offences as representing one occasion of possession of the total amount of drugs and impose sentences on both offences for that total. I will then order the sentences to run concurrently. I refer to paragraphs 29 and 30 of the judgment in Wan Lau Mei.

Starting Points Based on the Sentencing Guidelines

Cocaine:

It was held in Attorney General v Pedro Nel Rojas that the tariffs for trafficking in heroin in Lau Tak Ming should apply to trafficking in cocaine. For trafficking in quantities of between 10 and 50 grammes of cocaine, the sentencing range is 5 to 8 years’ imprisonment. In our present case, for 12.94 grammes of cocaine, I find that an appropriate starting point would be that of 63 months’ imprisonment.

Ketamine:

In Secretary for Justice v Hii Siew Cheng, the Court of Appeal laid down guidelines for sentence after trial for traffickers in ketamine and Ecstasy. For trafficking of 600 to 1,000 grammes, the range of sentence is that of 12 to 14 years’ imprisonment. For the 891.76 grammes of ketamine in our present case, applying the relevant tariff, I find that an appropriate starting point would be that of 161 months’ imprisonment, or 13 years 5 months.

The total amount of ketamine and cocaine trafficked in this case is 891.76 and 12.94 grammes respectively. The total weight of all drugs is 904.7 grammes. The ketamine takes up 98.57 per cent of this total weight, the cocaine taking up the balance of 1.43 per cent. The ketamine therefore makes up the bulk of the narcotics seized.

On that basis, I find that the proper approach to adopt when deciding on the sentence is the combined approach as set out in the case of HKSAR v Yip Wai Yin. My methodology is to take the starting point of 161 months and adjust it upwards by 3 months to account for the relatively small quantity of cocaine. The resulting combined starting point is that of 164 months’ imprisonment, or 13 years 8 months.

Testing the Adjusted Starting Point

I will apply two tests. The first is the absurdity test. If all of the 904.7 grammes of the seized drug contained only the most serious drug, that is to say cocaine, the starting point would have been 258 months, or 21 years 6 months’ imprisonment. The adjusted sentence does not even come near this figure.

The second test would be the conversion test. The 161 month sentence based on the quantity of ketamine is the sentence that would be imposed for trafficking in, say, 300 grammes of cocaine. This is based on the range of 200 to 400 grammes and 12 to 15 years’ imprisonment. If this 300 grammes of cocaine is added to the actual amount of 12.94 grammes of cocaine seized in our case, we would have 312.94 grammes of cocaine which would result in a sentence of 165 months, which is close to our adjusted sentence.

Putting it in another way, 63 months’ imprisonment from the 12.94 grammes of cocaine in our case would be similar to a sentence which would be imposed for trafficking in, say, 35 grammes of ketamine. If this 35 grammes of ketamine is added to the actual amount of 891.76 grammes of ketamine seized in our case, the resulting sentence for the 926.76 grammes of ketamine would be 163.5 months’ imprisonment. Again, a figure close to our adjusted sentence.

Having tested the sentence as adjusted via the two tests above, I find that the starting point of 164 months’ imprisonment is appropriate and I do so adopt.

Aggravating Factor

I have considered whether the fact that the two different kinds of drugs were found on the defendant to be an aggravating factor. I find that it is not, the reason being that there is no evidence to suggest that the drugs were to be sold together. There is therefore no evidence to suggest that the drugs so packaged will allow the trafficker to cater to a wider market. There is also no evidence on the effect on users of combinations of dangerous drugs. Even if there was, there is still no evidence to suggest that the drugs were to be sold together.

I will grant the benefit of the doubt to the defendant and not enhance the sentence on this basis.

Mitigating Factors

I find that the fact that the defendant had volunteered information about the flat where the bulk of the drugs were found a mitigating factor. I do note that the keys to the flat were found on the defendant’s person and that he was intercepted near the building where the flat was situated. Yet, without the defendant’s volunteered information, it was possible that the police might not have been able to identify the flat’s location, or it would have required considerable effort in order to do so. The defendant’s confession did make it much easier for the investigating authorities.

For that, I will reduce the sentence by 8 months, leading to a reduced sentence of 156 months.

The defendant is granted the full one-third discount for his timely plea of guilty and sentenced to 104 months’ imprisonment on each of Count 1 and 2, the two sentences to be served concurrently.

The final sentence is that of 104 months’ imprisonment, or 8 years 8 months’ imprisonment. This is the sentence.