HKSAR v. CHEUNG TSZ HIN

DCCC 1072/2023

[2025] HKDC 206

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1072 OF 2023

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REASONS FOR SENTENCE

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1.  The defendant is convicted on his own plea and agreement to Amended Summary of Facts of a charge of trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134.

Facts

2.  On 30 June 2023 at around 0458, police saw the defendant acting furtively near a private car (“the Vehicle”).  He was immediately intercepted for enquiry.  Upon body search of the defendant , a piece of tissue wrapping two transparent resealable plastic bags, each with a staple, containing a total of 1.23 grammes of a solid containing 1.05 grammes of ketamine was found inside his left pant pocket.  A car key to the Vehicle was also found inside his right pant pocket.

3.  The defendant was arrested for the offence of possession of a dangerous drug.  Under caution, he admitted the two bags of dangerous drugs were for his own consumption.  He also stated that the car key was the key to the Vehicle.

4.  Upon search on the Vehicle: 

(a)  1 red packet containing 11 transparent resealable plastic bags containing a total of 3.13 grammes of a solid containing 2.84 grammes of cocaine was found inside the central storage compartment next to the driver seat of the Vehicle; and

(b)  1 plastic bag containing 37 transparent resealable plastic bags (35 plastic bags each with a staple and 2 plastic bags)  containing a total of 22.7 grammes of a solid containing 19.0 grammes of ketamine was found inside the right front door storage of the Vehicle.

5.  The defendant was arrested for the offence of trafficking in dangerous drugs.  Under caution, he admitted all the drugs were for his own consumption.

6.  Later, a thorough search on the Vehicle was done by Police Dog Unit.  2 red packets containing 33 transparent resealable plastic bags containing a total of 9.34 grammes of a solid containing 8.43 grammes of cocaine was found inside the hidden compartment at the armrest behind the central storage compartment.

7.  The defendant was arrested again for the offence of trafficking in dangerous drugs.  Under caution, he admitted all dangerous drugs were for his own consumption. 

8.  The narcotic content of all seized dangerous drugs were subsequently confirmed by the government chemist. In total, (i)  44 transparent resealable plastic bags containing 12.47 grammes of a solid containing 11.27 grammes of cocaine, and (ii)  39 transparent resealable plastic bags containing 23.93 grammes of a solid containing 20.05 grammes of ketamine were seized. 

9.  The total estimated street value of the seized drugs was around HK$25,768.28.

Criminal Record

10.  The defendant has a clear record.

Mitigation

11.  The defendant is aged 27.  He lived with his mother prior to his remand.  He was educated up to Form 3, after which he started earning money to support himself and his family.  He has been previously employed at various jobs, as a security officer or as a driver and delivery man.  In June 2023, he suffered an accident whilst at work and was unable to resume the work after the accident as he had vertebral subluxation.  He has become unemployed since then.

12.  Defence counsel submitted that the court should sentence the defendant based on the conversion test or the ratio test as two types of dangerous drugs were involved, which would result in sentence of 68.65 months’ imprisonment or 67.41 months’ imprisonment. 

13.  It was said that the defendant committed the offence to earn fast money because of his financial difficulty at the time.  It was also said that he was stopped and arrested for possessing these drugs, and he did not receive any financial reward as a result of commission of the offence.

14.  It was submitted that the defendant’s girlfriend told the defendant while he was in remand that she was pregnant and that she intended to abort the baby. She never visited the defendant again, and therefore the defendant deduced that his girlfriend had already aborted the baby.  This caused the defendant deep regret and pain.

15.  The defendant, however, is supported by his family towards his rehabilitation.  Defence counsel submitted to court mitigation letters from the defendant and various members of family.  They all speak highly of the defendant. 

16.  It was said that the defendant should be entitled to full sentencing discount of one-third by reason of his guilty plea.  Defence counsel urged the court to sentence the defendant with sympathy and further reduce the sentence by reason of the defendant’s previous good character.

Discussion

17.  Before sentencing, the court has carefully considered all that was advanced on behalf of the defendant, including　the mitigation letters and all the certificates.

18.  On conviction upon indictment of this charge, the maximum sentence is a fine of HK$5 million and imprisonment for life.

19.  Trafficking in dangerous drugs is a very serious offence.  In usual circumstances, personal background of the defendant is seldom a valid mitigating factor.  Likewise, committing the offence by reason of financial difficulty or for financial reward is not a valid mitigating factor.

20.  In this case, the drugs involved is 20.05 grammes of ketamine and 11.27 grammes of cocaine, totalling 31.32 grammes.  The court considers most appropriate to adopt the ratio test in deciding the sentencing starting point. Cocaine represents 36% of the total drugs in question while ketamine represents 64% of the total drugs. 

21.  Had all the drugs trafficked been cocaine, following the authority of Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69, in adopting the guideline in R v Lau Tak Ming [1990] 2 HKLR 370, the sentencing starting point would be 79.19 months’ imprisonment.

22.  Had all the drugs trafficked been ketamine, following the guideline in SJ v Hii Siew Cheng [2009] 1 HKLRD 1, the sentencing starting point would be 60.79 months’ imprisonment.  

23.  Applying the ratio test, the sentencing starting point would be 67.41 months’ imprisonment.  

24.  It is also well established that whilst there are more than one type of drugs involved, the same constitutes an aggravating feature in sentencing.  In this case, the court will enhance the sentencing starting point by 3 months’ imprisonment, taking the sentencing starting point to 70.41 months’ imprisonment.

25.  The defendant has pleaded guilty, which is the most valid mitigating factor.  He is entitled to full one-third sentencing discount. 

26.  This court notes from the mitigation letters and the documents submitted by defence counsel that since the defendant left school in 2014, ie when he was 16, he had been gainfully employed and undertaken training courses in various fields whilst he was on the job from 2015 to March 2019.  However, although he used to have a clear record before commission of the present offence, it is said by the appellate court that any sentencing discount by reason of clear record or good character has already been subsumed in the one-third sentencing discount.

27.  The defendant is not a drug addict, and therefore all drugs seized were solely for trafficking. 

28.  In the circumstances, the defendant is sentenced to 46 months and 27 days’ imprisonment.