HKSAR v. CHEUNG ON KIN

DCCC 758/2017

[2018] HKDC 505

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 758 OF 2017

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REASONS FOR SENTENCE

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Introduction

1.  Police stopped a taxi driven by the defendant in the streets of Mong Kok, Kowloon, in the middle of the night, which led to the discovery of drugs. At the time of arrest, the defendant made a statement acknowledging ownership of the drugs which, he said, were for personal use.

2.  Now the defendant pleaded guilty before me to one count of   drug trafficking; the drugs found in his taxi, the subject matter of the charge, are 173 grammes of a powder containing 91 grammes of ketamine.

Facts

3.  About 3:20 in the morning of 31 May 2017, the defendant’s taxi, which was not for hire at the time, moved slowly along the streets near the junction of Reclamation Street and Soy Street, Mong Kok, Kowloon, plus the fact that the driver kept looking left and right, arousing suspicion.

4.  On seeing the patrolling officers, the taxi accelerated; the officers immediately jumped back in their police car and gave chase. The officers managed to stop the taxi in Portland Street and patted down the defendant there and then but found nothing.

5.  The officers then turned to the taxi and discovered the drugs in this case from a shoulder bag lying on the front passenger seat. The drugs were put in a plastic bag within a plastic bag; also found inside the shoulder bag were a mobile phone and cash $588.60. Another mobile phone and further cash of $1,500 were found in the space between the driver’s and front passenger’s seat. 

6.  The defendant told the police at the scene that the drugs were for his own consumption. In the subsequent interview with the police, he stated, among other things, the following:-

(1) -	He bought the drugs for $8,000 from a male in a park at Jordan Road a couple of hours before;
(2) -	After the drug transaction, he carried on his taxi business plying for hire but failed to get any passengers, when he decided to look for something to eat then he was stopped by the police;
(3) -	He usually took the drugs, ketamine, when he came off work by way of nasal inhalation of one to two grammes each time;
(4) -	He earned about $30,000 a month as a taxi driver and the cash found was related to his taxi business.

7.  Urine drug testing after the defendant was taken into custody detected recent drug use by the defendant because the test showed positive for cocaine.

8.  The value of the drugs seized is estimated to be $22,841.

Mitigation

9.  The defendant, 39, single, has amassed 4 previous convictions over the past 6 years none of which has to do with drug-related crimes; not even a drug possession offence.

10.  The court heard that the defendant had been a taxi driver for 14 years prior to his arrest earning approximately $30,000 a month. He is a long-time drug abuser over 10 years, counsel said. At first, he only abused ketamine but in around March 2017, the defendant started taking cocaine as well.

11.  In his letter to the court, the defendant expressed his remorse for what he’d done, realized how wrong he was and promised to turn over a new leaf after getting out of the prison and to become a law-abiding citizen.

12.  Defence counsel, apart from stressing the defendant’s plea of guilty as the prime mitigation, also put forward part-consumption as a ground for further reduction in sentence.

13.  The defence version goes like this:-

“The defendant would usually take drugs (ketamine) one to two grammes when he came off his night-shift as a taxi driver in the morning; another similar dose would be taken about 4 hours thereafter – two times a day. He bought the drugs in question for $8,000 a couple of hours before his arrest and half of it was for his personal use while the remaining half was bought on behalf of his friend who would pay him back $4,000. The defendant would take the drugs either in his parents’ home or his girlfriend’s place”

14.  Defence counsel tried to justify his case by saying that the drug transaction worth $8,000 was well within the defendant’s means for he had a stable job as a taxi driver earning $30,000 a month on average plus the fact that his friend would repay him half of the price, i.e. $4,000.

15.  In his written submission, counsel for the defendant also said, and I quote, that “As the facts show, the drug was bought in the midnight to 1 am. It is reasonable and nothing suspicious because the defendant was driving a taxi in the night shift. The explanation given by the defendant following arrest is consistent with his contention that the drug was for self-consumption.”

16.  The court has clarified with defence counsel in relation to the last part of his submission above - “consistent with his contention that the drug was for self-consumption”, in fact he is meant to say “consistent with his contention that the defendant was a drug abuser”.

17.  Based on the above reasons, defence asked the court to consider a further discount of 18%. At that stage, however, the court has indicated that it’s not prepared to accept the defendant’s claim of part-consumption simply on the available evidence before the court and made it clear to the defence that it’s willing to hear further evidence to determine the issue. Having taken instructions, defence counsel informed the court that there wouldn’t be any further evidence.

Reasons/Penalty

18.  First of all, I’d like to deal with the defence claim of part-consumption. The defence version, even on the face of it, is full of holes and is hard to believe.

19.  Basically, what the defendant was saying is that he was not making any profit but simply doing a favour to his friend to get the drugs; in other words, he wanted the court to accept that he had a regular job and did not deal on the side for extra money. Is this credible?

20.  According to the defendant, he continued to ply for hire with all the drugs on his taxi after the drug transaction, I am sure he must have known the risks involved in so doing – in the event of arrest he would face much longer prison term because of bigger bulk of drugs was found, why would he then run the risk himself when he could just tell his friend where to get it?  There are a myriad of ways connecting the drug dealer and his friend without the defendant getting involved.  Not to forget that he said he was doing it for free! The defendant’s story just doesn’t make sense.

21.  The facts don’t line up either, he said he abused ketamine regularly over a long period of time – two times a day. If that was the case, it would be safe to assume that he had taken ketamine on his previous shift but oddly enough, the urine test conducted after his arrest showed positive for cocaine instead of ketamine.    

22.  All in all, the defence version raises more questions than answers; in the absence of reasonable explanations, I do not find it worthy of belief.

23.  There are sentencing guidelines for trafficking in this type of drug – trafficking between 50 grammes and 300 grammes, a term of 6 to 9 years is to be considered. Given the amount the defendant pleaded guilty to trafficking (i.e. 91 grammes of ketamine), I take 6 ½ years as the starting point.

24.  Insofar as his mitigation is concerned, apart from his guilty plea, there isn’t anything of substance. His plea is timely, so he is entitled to a full one-third discount. Giving the appropriate discount, the starting point is reduced to 4 years and 4 months.

25.  As there is nothing to justify a further reduction in sentence, the defendant is therefore sentenced to 4 years and 4 months’ imprisonment.