HKSAR v. CHEUK YUET HING

HCCC 488/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 488 OF 2015

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

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COURT: The defendant, Cheuk Yuet-hing, was charged with the following two counts. The 1st count, trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134, and the 2nd count, possession of arms without a license, contrary to section 13 of the Firearms and Ammunition Ordinance, Chapter 238.

He pleaded guilty to both counts before me and I duly convicted the defendant of both counts after he admitted to the Summary of Facts.

Summary of Facts

On the day in question, the police mounted an anti-narcotics operation in Sham Shui Po area and they spotted the defendant when he was about to cross Tonkin Street. The defendant was carrying a black messenger bag at the time. When the police went to intercept the defendant, he suddenly dropped the bag and ran towards Castle Peak Road area. The defendant was later intercepted and subdued by the police who gave chase.

The defendant was then taken to the pavement to have a body search. Nothing suspicious was found on him. The search of the black messenger bag discarded by the defendant revealed four resealable bags containing suspected dangerous drug. The defendant was arrested. Under caution, the defendant asked for a chance saying that the dangerous drug was for his own use.

Later analysis confirmed the suspected dangerous drug to be 111.1 grammes of a solid containing 52.7 grammes of heroin hydrochloride with a street value estimated to be $80,325.

The defendant was taken back to Cheung Sha Wan Police Station and a further search was conducted on the said black messenger bag. On this occasion, the police found a stun gun or a stun device in the shape of a lighter. Under caution, the defendant said the stun device was used by him when he was interfered with by others. The stun device was examined and found to be capable of producing a pulsating voltage of 138,319 volts and capable of generating 52,083 high voltage pulses in a three-second duration.

The defendant attended two video recorded-interviews in relation to the two counts. For the dangerous drug offence, he maintained that he had purchased the dangerous drug for his own use, spending 40,000 for it. For the stun device offence, he maintained that he kept the stun device for self-defence should others intend to hit him, claiming that he had never used it.

Background of the defendant

The defendant is 51 years of age. His wife had passed away in 1996. He had a son who lives with his stepmother. The defendant himself was living with his girlfriend at the time of the offence.

The defendant is not a first offender. He has ten previous convictions; seven of them are drug-related. Six of them are possession of dangerous drug and one of them was possession of equipment fit for the consumption of dangerous drug.

Mr Wu, mitigating on behalf of the defendant, submitted among other things that the defendant intended to have one of the four packets for his own consumption. A Newton hearing was conducted to mainly determine the defendant’s claim that one of the four packets he trafficked at the time was intended for his own consumption. I said ‘mainly’ because, during the Newton hearing, the defendant also claimed that the stun device was only used as a lighter and not for self-defence as he had told the police.

I will first deal with the issue of whether one packet of the four packets was intended for the defendant’s self-consumption. The defendant and his girlfriend, Tsang Mei-chun, gave evidence for the defence. The prosecution adduced no evidence.

In short, the defendant’s evidence was that he started abusing dangerous drug in 1988. In 2010, he was caught taking dangerous drug while in hospital, waiting to have his gallbladder removed and he was sentenced to a drug addiction treatment centre.

After discharge, he refrained from taking dangerous drugs until 2014, when the old injury he sustained at work in 2011 was causing him pain still and he was feeling low when his relationship with his son was not good. By that stage, he was already living with his girlfriend, Tsang, at her flat in Laguna Verde. As Tsang was running her own beauty business, he did not have to give her any money to support her.

He originally worked for a company called Tak Lee Shipping when he sustained the injury. There was a dispute between him and his employer regarding the employee’s compensation claim and he left the company and started to work as a lorry attendant on a casual basis. He was earning a daily wage of $650 and an extra 200 if there was overtime. On average, he earned approximately $15,000 to $16,000 per month in year 2015.

Regarding the dangerous drug found inside his bag, he said he had phoned his usual supplier, someone called Ah Hing, to ask for another supply of about $8,000 worth of heroin. Ah Hing told him that he had four packets, one of which could be for the defendant. As the quantity is larger, Ah Hing told him that he would be charged 15,000 for one packet. Ah Hing also told him that he, that is Ah Hing, was moving house and had to go to the mainland for a few days. Ah Hing asked the defendant to do him a favour, to keep the three packets for him until he returned from the mainland. The defendant agreed. Hence, one of the four packets was intended for his own use.

The defendant was arrested by the police with these four packets. As he knew that keeping three packets for another person still amounts to trafficking in dangerous drugs, he lied to the police during the video-recorded interview and said all four packets were for his own consumption and that he paid 40,000 for them.

As to how he managed to pay for the $15,000, he said, originally, he intended to buy the drugs for $8,000. On the day in question before meeting Ah Hing, he asked Tsang for the rest of the money, without telling her what the money was for, that is $7,000.

Tsang gave evidence supporting the defendant’s version. She admitted running a beauty business at the premises in Laguna Verde and earned about $50,000 to $60,000 per month with her customers paying her cash. The defendant did not make any financial contribution to the household, save to buy things sometimes.

On 29 May 2015, when she was in the bathroom, the defendant said to her he would take $7,000 from her handbag without telling her for what purpose. But Tsang thought the defendant needed the money in relation to his own family, that is the son who was living with the defendant’s stepmother. To avoid embarrassment, Tsang did not raise any question. Tsang recalled having around $12,000 in her handbag and the defendant took 7,000.

According to the chemist certificate which was in the bundle, the four packets contained respectively 12.9, 13.3, 13.3 and 13.2 grammes of heroin.

Now as to the stun device, the defendant said he bought it from a shop as he liked the design. He used it as a lighter. He told the police, under caution, he intended to use the stun device for self-defence, which was not true. He said he was asked by the police whether the stun device was to be used for self-defence. Thinking that there would be no problem to say it was for his own self-defence, he said that was the case.

After considering all the evidence before me, I find that the defendant satisfied me on a balance of probabilities that one of the four packets was intended to be for his own consumption. What the defendant had said had a ring of truth about it and his evidence was supported to a great extent by Tsang’s evidence. I therefore accept that 25 per cent of the total amount of heroin found was intended for his own consumption.

I am, however, unable to accept his explanation why he had told the police, under caution, that the stun device was intended for self-defence. It defies logic if the true purpose of the device was only to be used as a lighter, and yet he told the police it was for self-defence. To be in line with his attempt to minimise his culpability in relation to the dangerous drug, he would have told the police that he was only using the device as a lighter. I therefore reject this part of his evidence.

As the prosecution confirmed that the device could indeed be used as a lighter as well, I find that the defendant was in possession of the stun device for a dual purpose; that is, to be used as a lighter and to use it in self-defence should he encounter anyone trying to harm him. I accept there is no evidence that he had ever used it.

Now, in mitigation, Mr Wu asked me to consider giving the defendant the full one-third discount for his plea, and in relation to the dangerous drug offence, to give the defendant a further discount for part of the dangerous drug being intended for his own consumption. That is in relation to the starting point. In relation to the stun device, Mr Wu asked me to take into account that there is no evidence that the defendant was in possession of the device for any illegal purpose. He also asked me to consider the totality of the two sentences, to make adjustment accordingly.

The Sentence

Trafficking in a dangerous drug is a serious offence. A person convicted of this offence, on indictment, is liable to be fined $5 million and to imprisonment for life. The Court of Appeal, in the case of Lau Tak Ming [1990] 2 HKLR 370, set down guidelines for sentencing traffickers trafficking heroin hydrochloride. The amount involved here is 52.7 grammes. For an amount between 50 to 200 grammes, the appropriate starting point is between 8 to 12 years.

Where part of the dangerous drug is for self-consumption, the appropriate starting point will have to be adjusted, see HKSAR v Wong Suet Hau [2002] 1 HKLRD 69. As to the percentage to be given, one should see the case of HKSAR v Chow Chun Sang [2012] 2 HKLRD 1116. In other words, 10 to 25 per cent when a significant part, or all, of the dangerous drugs was for self-consumption.

After considering the circumstances of the offence, I am of the view that a starting point of 8 years is appropriate for the total amount of 52.7 grammes of heroin. I will adjust the starting point by giving the defendant a discount of 12 months, which amounts to about 12.5 per cent, to take into account that 25 per cent of the drugs was for his own consumption. The starting point is therefore 84 months. The defendant will be given a full one-third discount.

The sentence for the trafficking in a dangerous drug, the 1st count, is therefore 56 months which equals to 4 years and 8 months’ imprisonment.

A person convicted of an offence of possession of arms without a licence, on indictment, is liable to a fine of $100,000 and imprisonment for 14 years.

According to the statement of Dr Wong Hon-man, the kind of stunning devices, of which the present one was one, was designed to produce an audible and visible deterrent display of sparks when operated in the open air and to administer a shock sufficient to cause temporary incapacitation when applied to the human body.

In the case of The Queen v Wong Chuen Pong - I do not think it is reported - CACC 579/1996, 2 years’ imprisonment after plea was imposed on the defendant for possession of a stun device with a discharge of 60,000 volts.

Bearing in mind there is no evidence that the defendant was in possession of the stun device to commit any criminal offence, I am of the view that a starting point of 2 years is appropriate for this offence.

The defendant is entitled to a one-third discount for his early plea, even though, during the Newton hearing, I did not accept his explanation as to the self-defence part - because that part did not really occupy much of the actual Newton hearing itself. So with the one-third discount, the sentence for this offence is one of 16 months.

Taking into account the totality principle, I am satisfied that 8 months of this sentence should run consecutively to the sentence imposed for the trafficking in a dangerous drug offence.

So the actual sentence for the 1st count, trafficking in a dangerous drug, 4 years and 8 months’ imprisonment. The 2nd count, possession of arms without a license, 16 months’ imprisonment. Eight months of the 2nd count to run consecutively to the 1st count, 4 years and 8 months, making a total of 5 years and 4 months’ imprisonment.