HKSAR v. CHENG YEE

DCCC 555/1987

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 555 OF 1987

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REASONS FOR SENTENCE

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1.  Cheng Yee you have pleaded guilty to one charge of possession of 95.53 grammes of a mixture containing 7.93 grammes of heroin for the purpose of unlawful trafficking, contrary to the now repealed section 7 of the Dangerous Drugs Ordinance, Chapter 134.

2.  In summary around 23:45 on the 30 May 1987 the police launched an anti-narcotics operation outside Flat B, 2/F, Kiu Yip Building, No. 18 Yuet Wah Street in Kwun Tong.  At 00:03 the next morning you opened the door when the police pressed the doorbell only to then immediately close the door when you realised they were police officers.  The police were unable to force the door open and only gained entry to the flat when you let them in eight minutes later.

3.  Two minutes after you closed the door the police saw you throw a grey package out of a window of the flat.  The grey package was found to contain 231 empty small transparent polythene bags and 16 transparent polythene bags containing the heroin.   

4.  In passing sentence I have carefully considered everything said on your behalf by Mr Lee, in particular that you are now 71 and not in good health.   I am told by Mr Lee that although you were a drug addict at the time of arrest in 1987 you accept that all the drugs thrown out of the window were for the purpose of unlawful trafficking.  I note from your mitigation letter submitted today you quit your drug addiction whilst in China.

5.  Your case was listed for trial on the 5 November 1987 however you failed to attend court.  Mr Lee explains that as you were the only son of the family you returned to China to look after your parents.  Whilst in China you married in 1993 and have one son who is now 16.  

6.  You are to be sentenced according to the sentencing guidelines applicable in 1987 if they would result in a lower sentence.  In R v Chan Chi Ming [1979] HKLR 491 the Court of Appeal laid down guidelines for trafficking in heroin which were based on the mixture and not the narcotic content.  The court said for small quantities between 30 grammes and 150 grammes the sentence should range between 3 to 5 years.   

7.  I am satisfied the proper starting point after trial for 95.53 grammes is 4 years imprisonment.  If sentence was based on the narcotic content according to the current guidelines laid down in R v Lau Tak Ming[1990] 2 HKLR 370 the starting point would be over 4 years.  I therefore take as my starting point 4 years imprisonment. 

8.  In Chan Chi Ming the Court of Appeal said that previous drug offences should be taken into account and will usually result in a higher sentence.  In 1980 you were convicted of possession of a dangerous drug for the purpose of unlawful trafficking and sentenced to 8 years imprisonment.  I am satisfied by reason of your similar record the starting point is to be increased by 2 months to 4 years and 2 months imprisonment.

Surrender

9.  Mr Lee submits you should be given one third discount for your plea of guilty notwithstanding you absconded from trial in 1987.  This Mr Lee submits is because you surrendered last year when you could quite easily have stayed in China. 

10.  The courts have said surrender to authorities is to be encouraged.  In HKSAR v Chow Tak Fuk CACC 428/2004 the defendant absconded to the Mainland for some 12 years when he returned to Hong Kong and was intercepted by the police at the border.  The Court of Appeal in upholding a discount of only 25% on a plea of guilty said:

“Whilst the courts must always encourage persons to surrender, so that some credit for that fact will normally be given, those who might be minded to flee should not be led to believe that if ultimately they return they will be in no worse position than had they not fled in the first place.”

11.  This was applied in HKSAR v Sun Yu Hing CACC 398/2010 where a 20% discount was upheld on appeal where the defendant left for the Mainland almost immediately after committing a robbery and was only arrested about two years later when he returned from the Mainland. 

12.  I am satisfied that a discount of 25% is appropriate.  The defendant is convicted and sentenced to 3 years and 1 month and 15 days imprisonment.

Ill-health

13.  Whilst I sympathise with your declining health there are no grounds to further reduce your sentence by reason of ill health.  I am satisfied that you will receive proper medical care and attention while serving your sentence.  Should your health deteriorate whereby the correctional services can no longer properly take care of you, you can petition the Chief Executive for clemency.