COURT: The defendant, Cheng Chi-hang, pleaded guilty to one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134, before a Magistrate and is committed to the Court of First Instance of High Court for a sentence.
Summary of Facts
On the day in question, police officers conducted anti-crime patrol at Liu To Road, Tsing Yi. The defendant was spotted acting furtively and was intercepted for inquiry. Nothing incriminating was found on the defendant after a quick search. A background check disclosed that the defendant was wanted for breaching the supervision condition of the Correctional Services Department. The defendant was therefore arrested and brought to the Tsing Yi Police Station.
Whilst at the Report Room of the Tsing Yi Police Station, a police officer standing next to the defendant heard a sound of dropping object, and found a tissue paper wrapping a plastic bag on the ground near the defendant’s right shoe.
The bag contained what was later confirmed to be 27.8 grammes of a crystalline solid containing 27.8 grammes of methamphetamine hydrochloride.
Under arrest and caution, the defendant claimed that the drug was purchased from an unknown male at the cost of $8,000 in Mong Kok the day before for his own consumption. Two mobile phones and cash of $850 were found on the defendant at the time.
A video-recorded interview was subsequently conducted with the defendant. Under caution, the defendant stated, among other things, the following.
The drug seized was purchased by him from an unknown male at the cost of $8,000 in Mong Kok the day before for self-consumption. He consumed drugs with equipment that is burning the drug in a bottle and inhaled it. He took around 1 to 2 grammes of ‘Ice’ per day. He hid the drug under his trousers at his waist for convenience and subsequently dropped it on the ground at the Report Room of the Tsing Yi Police Station.
The two mobile phones seized from the defendant belonged to him, one was for self-use and the other one for work. He was employed as a transportation worker with a daily salary of HK$900. The cash of $850 found on him was his salary.
The estimated street value of the drugs involved is around HK$18,681.
The defendant admitted that at all material times, he knowingly possessed the dangerous drugs seized for the purpose of unlawful trafficking.
Background and Mitigation
According to the antecedents statement, the defendant was born in 1980 and is now 44 years of age. He has six drug-related convictions, five for possession and one for trafficking. He was educated up to Form 3 level and worked as a transportation worker. He is a divorcee and prior to his arrest, he was living with his mother.
Mr Paul Leung, defence counsel, submitted that the defendant has a wife who lives in the Mainland. His wife had two children from her former marriage. The defendant earned about $17,000 per month as a transportation worker. The defendant started taking ketamine when he worked as a waiter in a bar in year 2000.
Since 2008, the defendant started taking ‘Ice’ and cocaine. Recently, the defendant kept taking ‘Ice’, ketamine and
cocaine alternatively. He was tested positive for cocaine upon remand at the CSD. Defence counsel submitted that the defendant was unable to make ends meet even though he was working as a transportation worker as he had to support his wife and her children, and also had to buy drugs for his own consumption.
He met an acquaintance one day before the commission of the offence and he was enticed to collect drugs in Mong Kok to bring to his acquaintance, with the promise to be provided with drugs enough for his own consumption for one month.
When the defendant was intercepted by the police, he was arrested as he wanted for the breaching of the supervision condition of CSD. It was only later at the police station that the drug was found when it fell out.
After referring to the case of Tam Yi Chun, counsel submitted that based on arithmetic calculation, 27.8 grammes of ‘Ice’ would attract a notional starting point of around 8 years and 2 months. With reference to the case of Herry Jane Yusuph, counsel submitted that the defendant played the role of a courier.
Counsel urged this Court not to enhance the starting point due to the defendant’s previous drug convictions. Counsel submitted that the defendant owned up right away and pleaded guilty at the first opportunity. Counsel also confirmed that the defendant was not relying on any assertions that part of the drugs was for his own consumption as part of mitigation.
The defendant wrote to this Court expressing his remorse for having committed the offence. His incarceration hindered the application of his wife to come to Hong Kong with her two children. He is also unable to take care of his aged mother. He knows the sentence would not be short and he ask for leniency so that he can reunite with his family and look after his mother.
The defendant’s wife also wrote to this Court asking for leniency. She also referred to the difficulties caused by the defendant’s incarceration, that is not being able to go to the Mainland for apply for her and her two children to come to Hong Kong, and also not being able to take care of the defendant’s aged mother.
Consideration of the sentence
Trafficking in a dangerous drug is a serious offence. A person convicted of this offence on indictment is liable to imprisonment for life and a fine of $5 million. Adopting the six-step approach in Herry Jane Yusuph.
The first step
The starting point for trafficking 27.8 grammes of ‘Ice’ falls in the bracket of 7 to 11 years according to Tam Yi Chun.
The second step
On the facts admitted, the role played by the defendant was that of a courier.
The third step
As a courier, an appropriate starting point in all the circumstances of this case is one of 8 years and 2 months.
The fourth step
The defendant had five drug-related convictions. One of them was for trafficking in a dangerous drug for which he was sentenced to 4½ years’ imprisonment in 2013. The last drug-related offence was possession of dangerous drugs for which he was sent to a drug addiction treatment centre in 2022.
I am of the view that his previous similar convictions amount to an aggravating factor. An enhancement of 3 months is appropriate. So the notional starting point is enhanced to 8 years and 5 months. That is the same as 101 months.
The fifth step - Mitigating factors
The only mitigating factor is the defendant’s timely plea for which he is entitled to a full one-third discount. The difficulty faced by the defendant’s wife and her two children and the aged mother do not amount to mitigating factors to further reduce the sentence.
The last step
With the discount, the sentence is one of 5 years and 7 months. That is 67 months. I am of the view that this sentence is fair, just and balanced and not out of proportion of the defendant’s criminality.
Actual sentence
For the offence of trafficking in a dangerous drug, the defendant is sentenced to 5 years and 7 months’ imprisonment.