HKSAR v. CHEUNG KWOK HUNG

DCCC 173/2024

[2024] HKDC 2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 173 OF 2024

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REASONS FOR SENTENCE

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1.  The defendant has pleaded guilty to a single charge of trafficking in a dangerous drug, contrary to Section 4 of the Dangerous Drugs Ordinance, Cap 134. Particulars of the offence show that it occurred at a storeroom at a loading bay in a mall in Heng Fa Chuen in Hong Kong. The defendant is alleged to have unlawfully trafficked in drugs called methamphetamine hydrochloride, total of 6.74 grammes of that drug, and a further 4.45 grammes of the drug ketamine.

2.  The facts are straightforward.  The defendant was intercepted outside the storeroom in Heng Fa Chuen.  He was searched and a key was found which unlocked the door to the storeroom and another key which unlocked a padlock of a drawer.  The storeroom was found and in the padlocked drawer the drugs were found together with various resealable plastic bags and an electronic scale.  The defendant under caution initially said that the dangerous drugs in question were for sale to others so he could earn extra money, conceded he had said that the drugs were Ice and ketamine, he sold the drugs to earn money and the keys were found and used for accessing the drawer.  The street value of the drugs follows the methamphetamine, colloquially known as Ice, was valued at $2,859, the ketamine was valued at $2,586.

3.  The defendant’s antecedents show him to be a man now aged 43 years.  He has a number of previous convictions, in fact 10 previous occasions when he has been in court and previous convictions for possession of a dangerous drug on a number of occasions.  He has been sentenced to Drug Addiction Treatment Centre and imprisonment.  He also has convictions for the trafficking in a dangerous drug in 2006 when he received a 12 month sentence and finally in 2010 when he received a sentence of 5 years and 4 months in the High Court.

4.  Now further details about his personal life were given in his mitigation.  He received education in Hong Kong up to Form 3.  He is married, has two sons aged 3 and 8.  He is described as the sole breadwinner of his family, was employed as a cleaner with Wilson Cleaning Services receiving $18,000 a month and that is confirmed by reference to his salary statements and also letters of commendation from his manager at Wilson Cleaning Company.  He is well spoken of.  He looks after his elderly parents providing them with money for living expenses.  He also appears to have made contributions to charities as well.  He gave the reason he was under financial pressure at the material time and raised extra money by selling drugs.

5.  I note that the defendant’s previous convictions in mitigation said the previous convictions showed the defendant has a history as a drug user and drug-dependent and in fact there is a urine report collected on 14 October 2023 after his incarceration which tested positive for amphetamine which is course is indicative of consumption of methamphetamine and it is part of the defence mitigation that he had consumed a portion of, in fact a significant portion of that drug which was one of the drugs he was trafficking in at the material time.

6.  Also in mitigation it was said that the previous convictions for trafficking in a dangerous drug which could be an aggravating factor in this case were committed some lengthy time ago, the latest being in 2010, some 14 years ago, and should be disregarded by this court as indicative of an aggravating factor in this case.

7.  Of course the sentencing in cases like this is largely governed by guideline sentences and also sentences is the correct approach the court must take.  Most recently examined by the Court of Appeal in the case of HKSAR v Herry Jane Yuseph [2012] 1 HKRD at page 290, where the court set out a six-step approach for sentencing in drug trafficking cases and also I must take into account the fact that we are dealing here with a cocktail or a combination of drugs were the courts have taken a number of different approaches over the years but have settled down into the position that the combined approached, as described in HKSAR v Cheung Wai Man [2019] 1 HKRD 817, is the preferred approach in most cases.  I note from the case of Herry Jane Yusuph, besides the six-step approach that is outlined there also is an indication to the courts that deal with these matters that it is not a purely mathematical exercise, there is still a substantial discretionary element into the starting points that be chosen for sentence and where on a relevant guideline a defendant may be located.

8.  Dealing firstly with the relevant guidelines.  First is the drug methamphetamine.  For a quantity of up to 10 grammes the starting point for imprisonment should be between 3 to 7 years’ imprisonment.  In respect of the drug ketamine, for a quantity of between 1 and 10 grammes the starting point should be between 2 to 4 years’ imprisonment.  The defendant’s role in this of course is one of storekeeper of what appears to be his own stash of drugs.  Now the question of whereabouts on the relevant guidelines the defendant stands in terms of an appropriate starting point, this would involve some form of mathematical calculation.  It would appear that in respect of the drug methamphetamine where the defendant is trafficking in 6.74 grammes of that drug the starting point for sentence would be round about 5 years and 8 months and the starting point for sentence of the drug ketamine where there are 4.45 grammes would be a sentence in the region of 2 years and 9 months.

9.  The combined approach where one is dealing with a combination of drugs directs the court to consider the starting point for the most potent drug and then have an adjustment to that to reflect the fact there is another drug involved.  That figure that is arrived at by that calculation can then be tested by a number of other tests that have been set out by the courts, such as the individual test, the conversion test and the ratio test.  I have considered those tests and the figures are set out in the mitigation that has been put before the court, I do not propose to outline them in any detail here suffice it to say that I consider the appropriate starting point for this combination of drugs in this case is one of 5 years and 10 months’ imprisonment which is a figure of 70 months’ imprisonment.  There are no further aggravating factors to increase that figure.

10.  I must now look at the mitigating factors.  There are two minor mitigating factors in this case besides the defendant’s own personal circumstances.  The first one to be considered is the fact the defendant says he is a consumer of the drug and it is trite law that where the defendant would consume a significant portion of the drugs he is alleged to be trafficking then a deduction of between 10 and 25 per cent can be made from the original starting point.  The evidence to support the fact the defendant is a consumer of the drug is quite substantial in this case.  The defendant has a lengthy record of being involved with drugs right back to 2004.  He has been, as I indicated, sentenced to Probation, imprisonment and finally to Drug Addiction Treatment Centre.  None of those sentences appeared to have curtailed his need for the drug, so I am satisfied that the defendant is a consumer of drug.  I am also satisfied the defendant is a consumer of the drug methamphetamine because that has showed up in his assay test after arrest and incarceration.  It would be the conclusion that can be drawn from that is that the defendant not only would consume a part of these drugs but he would consume what could be described as a significant portion.  That requires a discount from the initial starting point of 70 months that I have outlined.

11.  I have determined that there should be a discount of 13 months of that figure, this is just under 20 per cent of the figure of 70 months.  That would lead to a starting point now of 57 months’ imprisonment.

12.  The defendant is entitled to a full one-third discount for that figure. That would lead to a final sentence of 38 months’ imprisonment.  I consider that overall to be an appropriate sentence for this defendant at this stage in his life.  It is clear he has strong family support and it is to be hoped that he can finally rid himself of his addiction and lead a normal life.