HKSAR v. CHEUNG MAN LUNG

DCCC 476/2025

[2026] HKDC 892

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 476 OF 2025

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Ruling

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1.  Here is my ruling on the Newton Inquiry conducted for the purpose of determining whether the defendant had made out his case that a portion of the cocaine and ketamine found by the police in this case (the subject matter of the charge) were for his self-consumption.

2.  Before I give my ruling, I should first set out the background leading to the necessity of calling for such a Newton Inquiry.

3.  At the mitigation stage, the defence submitted that, according to the defendant’s instructions, a significant proportion of the dangerous drugs (which would include both cocaine and ketamine) found and seized by the police were for his own consumption. It was submitted that, if this court and also the prosecution were to accept such submission, then, according to the line of authorities starting from HKSAR v Wong Suet Hau, Ice [2002] 1 HKLRD 69, the defendant would be entitled to a discount from the sentencing starting point which this court would be minded to adopt apart from the usual one-third discount given to the defendant by reason of his guilty plea.

4.  The defence submitted that the defendant was a consumer, indeed abuser, of both cocaine and ketamine. The defence pointed out the defendant’s 14 previous convictions relating to possession of dangerous drugs, and the orders made by the courts on a number of occasions that he be sent to the DATC for treatment.

5.  In addition to those, the defence produced to this court a urine test report compiled by the Correctional Services Department, which stated that, on 3 September 2024, the day following the defendant’s admission into Lai Chi Kok Reception Centre (He was arrested on 1 September and remanded in LCKRC on 2 September), the defendant tested positive to cocaine. The defence also invited this court to direct the CSD to prepare a report on the result of the test for ketamine. This court did. Nevertheless this court got a reply from the CSD that they did not undertake any test in respect of ketamine at the time of the defendant’s admission to LCKRC.

6.  The defendant also pointed out that, according to the Summary of Facts, both at the time of arrest and at the time of the cautioned interview, the defendant stated that the drugs were for his own consumption. Never did he say that he was trafficking in those drugs.

7.  The defence submitted that, in the light of those matters, there is evidence suggesting the defendant has been an abuser of cocaine and ketamine for some time, and therefore the saying that a portion of the drugs were for his own consumption could be sustained. In those circumstances, it would follow that the defendant should be given at least a discount in the range of 10 to 15 percent off his sentence on top of the one-third discount. The defence emphasized that it merely asked for a minimal discount, notwithstanding the fact that, according to the defendant a significant proportion of the drugs were for his own consumption.

8.  Despite so, the prosecution opposed that part of the defence’s mitigation. It would appear to this court that the prosecution was not certain about what it was opposing. At one time the prosecution said it did not accept the defendant’s saying that part of the drugs were for his own consumption (even a very small portion). At another time the prosecution said the defendant did not make out a case that a significant proportion of the drugs were for his own consumption.

9.  The prosecution’s submissions were to the effect that this court should totally disregard, or place no weight on, the matters relied upon by the defence, including the urine test report, the criminal convictions and the cautioned statements. The prosecution also made known to this court its firm stance: It would be opposing the defence’s assertion (to use the prosecution’s words) in any event.

10.  Against such background, with the agreement of both the defence and prosecution, this court conducted the said Newton Inquiry. The defendant was the only witness who testified.

11.  The defendant’s evidence can be summarized as follows.

12.  The defendant is 49 years old. He is single. Prior to his arrest on 1 September 2024 he was living in a privately owned apartment in Sau Mau Ping with his mother. He was a driver in the logistics industry. He had to deliver goods to customers who placed their orders on the Mainland shopping platform Tao Bao. His monthly salary was about $20,000, which would be paid to him by his employer by way of cash in two instalments each month.

13.  He said he started to abuse ketamine as early as 1999, and cocaine as early as 2013. He said ever since he has maintained a habit of consuming both ketamine and cocaine two times a day. He said he would usually consume both drugs once at day time, and once in the evening. At day time, he would consume 0.3 gramme of ketamine, and also 0.3 gramme of cocaine; and in the evening 0.7 gramme of ketamine and 0.2 gramme of cocaine. In other words, every day he would usually consume 1 gramme of ketamine and 0.5 gramme of cocaine. He added that it would be easier to take ketamine because no smoking tool or paraphernalia was required.

14.  He said he had consumed ketamine and cocaine once on 1 September 2024 before he was arrested.

15.  With regard to the dangerous drugs seized by the police from the van, he said he possessed them for different reasons and purposes.

16.  First of all, the drugs found in the door compartment were put into 2 different plastic bags on purpose:

I.  The purple plastic bag containing 13 small bags of cocaine (Exhibits P3 and P4) were the cocaine he possessed for his own consumption.

II.  The black plastic bag containing 17 small bags of cocaine and 19 small bags of ketamine (Exhibits P1 and P2 altogether) were for delivery to persons whom he designated as “Persons of Group B”.

III.  The paper packet containing 0.08 gramme of ketamine found in the door handle compartment (Exhibit P5) was some residue after his consumption on prior occasions.

IV.  The transparent plastic bag containing 21 small bags of ketamine found on the dashboard (Exhibit P6) were also for his own consumption.

(A note I should make here is that, the defendant could not remember the exact number of small bags found in those larger plastic bags. The number of small bags is stated above simply to enable easy understanding.)

17.  He said he got all those drugs for free from a person he designated as Person A. He said he would not have to pay Person A as long as he (the defendant) would also deliver drugs to Persons of Group B. He regarded the provision of free drugs to him from Person A as a form of reward.

18.  The prosecution did not challenge the defendant’s saying that he was an abuser of both ketamine and cocaine. Nor did the prosecution challenge the quantity of drugs that he said he consumed every day. Essentially, the prosecution’s challenges focused on two different matters:

(i)  Did the defendant agree that it was a contradiction when in his cautioned interview he said he financed the purchases of drugs with his salary, yet in his testimony he said he got them for free from Person A; and

(ii)  Did the defendant agree that it was unreasonable that the quantity of drugs which he said he got for free from Person A (i.e. those he said were for his own use) was larger than the quantity of drugs that he intended to pass on to Persons of Group B.

19.  In reply to the first line of questioning, the defendant explained that, if he was giving out too many drugs to others, then he had to pay for the drugs he intended to keep for his own consumption. In reply to the second line of questioning, he disagreed the prosecution’s suggestion that it was something unreasonable. In other words, the defendant did manage to give his explanations for those matters. Yet, unfortunately, the prosecution never asked any follow-up questions. As this court observed it, what the prosecution did was to simply switch to another topic without digging deeper into the answers and explanations given by the defendant. Moreover, very often, if not at all times, the prosecution asked open questions, thereby allowing the defendant much room to explain. In other words, the evidence given by the defendant was not effectively challenged, or not even challenged at all. With respect, that is not how cross-examination should have been conducted.

20.  This court would like to make a remark in regard to the prosecution’s challenge to the defendant’s evidence that most of the drugs, or roughly half of the drugs, in his possession were for his own use and not for trafficking purposes. If the prosecution recalls, at one juncture it asked the defendant where and when he got those many small bags of ketamine and cocaine, to which question the defendant replied he could not remember at all. Again, the prosecution did not follow up with the defendant. When the defendant answered that he could not remember where and when he got the drugs, one of the possible interpretations of his evidence is that he could have obtained those drugs from Person A on separate occasions but not on one single occasion. Likewise, the defendant was not asked when it was that that he put those small bags of drugs into the two distinct plastic bags, namely the purple and black plastic bags. If it is possible that the defendant could have obtained some drugs from Person A on separate occasions, and later packed them into the purple and black plastic bags, it would mean that some older drugs might have been mixed up with some newer drugs. It follows that the prosecution’s second challenge, namely - that it was unreasonable that the drugs possessed by the defendant for his own consumption outweighed the drugs possessed for trafficking purposes - does not have a logical basis at all.

21.  As a matter of fact, the prosecution did not make clear the basis of its opposition to the defendant’s case that part of the drugs were for his own consumption. As I have pointed out at the outset, the defendant’s evidence aside, the defence highlighted the defendant’s previous convictions, the urine test report as well as his cautioned statements when it was submitted that the defendant intended to consume part of the drugs found in this case. Nonetheless, never did the prosecution refer to any of them when, seemingly, they were materials against the prosecution.

22.  In HKSAR v Chong Chee Meng, CACC 315/2007, the applicant pleaded guilty in the Court of First Instance to a count of trafficking in a dangerous drug, namely cocaine. In mitigation the applicant said that all the cocaine were for his own consumption. The learned judge held a Newton hearing. She rejected the applicant’s claim after holding the Newton hearing. The applicant appealed. One of the issues at appeal was the standard of proof that the applicant had to discharge at a Newton hearing. After having discussed this issue at length, the Court of Appeal concluded that, at a Newton hearing, in particular one that is specifically held for the purpose of determining an issue raised by the defendant but is something falling outside of the scope of the prosecution’s case, then, first of all the defendant bears an evidential burden to raise the issue, and further, the legal burden to prove, on a balance of probability, the fact in issue. A contention by a defendant that part of the dangerous drugs found were for his own consumption is one of the situations where those rules of evidence apply. In this regard, see paragraphs 50 to 54 of the judgment.

23.  As the matter transpired, what the defendant said in evidence was that roughly half of the dangerous drugs found in this case were for his own consumption. Such quantity would represent a significant proportion of the drugs found. Therefore, the defendant was saying that a significant proportion of the ketamine and cocaine found were for his own consumption.

24.  I bear in mind the rules of evidence stated by the Court of Appeal in Chong Chee Meng in deliberating the defendant’s case. I also bear in mind what was said by the Court of Appeal in Wong Suet Hau, Ice when in mitigation a defendant submits to the sentencing court that part of the dangerous drugs were for self-consumption. As discussed above, in support of his case, the defendant had referred to his many previous convictions for possession of dangerous drugs, his urine test report as well as his cautioned statements in which he said the drugs were for his own consumption.  Furthermore, his evidence was not effectively challenged, or not challenged at all by the prosecution.

25.  In those circumstances, I rule that the defendant has not only discharged his evidential burden of raising the issue, but also his legal burden of proving that approximately half of the dangerous drugs found in this case were for his own consumption. That is to say, the defendant has proven to the required legal standard that a significant proportion of the drugs were for self-consumption.

26.  As to the discount that this court should give to the defendant, I shall hear further submission, if any, from the defence.

27.  Before leaving this piece of writing, I should point out that the Court of Appeal’s judgment in Chong Chee Meng has, in a way, overruled the prosecution’s submission that the Court of Appeal had meant to say, in paragraph 49 of the judgment of HKSAR v Cheung Wai Man [2019] 1 HKLRD 817, that, in determining the issue of self-consumption, the sentencing court must find that a “significant proportion” of the drugs were to be consumed by the defendant. With regard to this issue, see paragraphs 59 to 62 of the judgment of Chong Chee Meng.