HKSAR v. CHEUNG TING

HCCC 494/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 494 OF 2016

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: Mr Cheung, you pleaded guilty to one count of trafficking in dangerous drugs, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, on 16 December of last year, before the Eastern Magistrates Court and you have been committed to this court for sentence.

The offence of trafficking was in respect of 994.66 grammes of methamphetamine hydrochloride, or ‘Ice’ as it is commonly called, and 47.60 grammes of heroin hydrochloride. The Summary of Facts was read out to you on the last occasion and you confirmed that this was the basis upon which you entered your plea. You stand formally convicted of that charge.

On 16 March 2016, the police raided your flat. They found a significant number of packages upon a shelf within a cupboard in your living room. Those packages contained small resealable plastic bags of drugs, ready for onward distribution in groups, and a number of other packages of drugs which were wrapped in differing styles which suggests that they were not purchased at the same time or from the same source. Those packages were found to contain a total of 994.66 grammes of ‘Ice’ and 47.6 grammes of heroin hydrochloride.

You also had an inhaling device for consuming ‘Ice’, weighing scales, three Samsung mobile phones and other items suitable for selling drugs, all of which you admitted were used for trafficking, save for two of the three phones. In particular, I note that your residential TV screen was tuned to the CCTV system. This appeared to me to be a pretty professional distribution centre you were operating.

To your credit, on arrest and caution you admitted the packets of ‘Ice’ were divided into ounce, or 28.35 grammes, and half ounce, approximately 14 grammes, packets which had been purchased along with the heroin hydrochloride for what you said was $56,000 and $10,000 respectively from someone called ‘Lang Chai’ just a few days earlier. We have no way of knowing whether that assertion is true. You say you purchased the drugs on 12 March 2016 and you were arrested on 16 March. You said you had already sold some of those drugs that you had purchased; some of them were for onward sale and some were for self-consumption.

I note that the street value of the gross amount of the dangerous drugs recovered was $318,227 for the ‘Ice’ and $41,440 for the heroin hydrochloride.

That is quite different from the figures that you have suggested up to six and four times the amount you say you paid. You may have had a discount for a bulk purchase, but I doubt if you would have had the means to purchase these drugs even in bulk form at a discounted rate. That is because, in interview, you said you were a casual decoration worker. I therefore take the view that you must have been working for someone else and not entirely on your own account and the majority of your income must therefore have come from the sale of dangerous drugs which you said was $2,000 for a 28 gramme, or an ounce, bag of ‘Ice’ and $1,200 for a 14 gramme or half ounce, bag of ‘Ice’.

Mr Cheung, you have three previous convictions for trafficking in dangerous drugs: in August of 1985, when you were sentenced to 8 years on two counts of trafficking; in January 2012, when you were sentenced to 7 years for another two counts of trafficking; and in March of 2010, when you were sentenced to 4 years and 4 months by this court for one count of trafficking.

Those are not the only matters on your record. You have many more matters unrelated to drugs but your last drug-related matter was one of possession for which you received a suspended sentence of 2 months to run consecutively with the 2 months’ suspended sentence you received for possession of an offensive weapon. You are in breach of that suspended sentence because you committed this offence in March of 2016 and that period of suspension did not expire until 17 July of 2016.

The greater part of the suspension had been completed, as Mr Yeung said, by the time of your arrest, and therefore, given the sentence you will face for trafficking in such a large quantity of drugs, I intend to sentence you today to 6 weeks for each of the charges which were the subject of the suspended sentence - so 6 weeks for each, 3 months in all - and to enhance your sentence for trafficking in dangerous drugs by only 3 months for your previous bad record.

Therefore, the sentence I am about to pass will be enhanced by 3 months in respect of the matter before the court with a separate sentence of 6 weeks each for the matters the subject of the suspended sentence.

Mr Yeung, on your behalf, submits you had some part of those drugs for your own personal consumption; the court should consider between 10 and 25 per cent, on the authorities, as an amount to be deducted from the drugs recovered. That would be approximately something between 99.5 grammes of ‘Ice’ and 250 grammes of ‘Ice’ which would have cost you personally between HK$30,000 and HK$75,000.

Mr Yeung bases that submission upon HKSAR v Tsang Chung Keung [2015] 1 HKLRD 450 where the defendant had just 6.33 grammes of ‘Ice’ in his possession. All of the cases referred to in that judgment are for similar small amounts. None of them concern a situation such as the one before me where the defendant is in possession of almost a kilo of ‘Ice’. So to talk of percentage terms is therefore wholly misleading and unrealistic.

Self-consumption

In HKSAR v Wong Suet Hau & Another [2002] 1 HKLRD 69, the Court of Appeal considered the situation where a defendant had pleaded guilty to trafficking in dangerous drugs but had submitted that part of the drugs concerned were for self-consumption or social trafficking. In both the cases considered on appeal, the amounts, yet again, found to be the subject of trafficking were relatively small, being 68 grammes and 14 grammes of ‘Ice’ respectively, and in both cases, the appeals were dismissed.

Nevertheless, the Court of Appeal identified a number of factors which should be taken into consideration when such a submission is made, as is the case here. These are:

(a) The quantity and value of the drugs.

(b) The general circumstances of the case including how the drugs were recovered, how they were packaged, in what quantities, etc.

(c) Where the drugs had been recovered from, whether at a residential or commercial premises or in a public place.

(d) The presence of paraphernalia, for example packaging or weighing equipment, for consuming it, any cutting agent, etc.

(e) Whether the defendant was a substantial addict.

(f) The explanation given by the defendant upon arrest.

(g) The defendant’s ability to pay for the drugs otherwise than in trafficking them.

(h) The defendant’s criminal record in relation to previous drug offences.

I would respectfully add to that list at (d), the number of mobile phones nowadays that we appear to see drug dealers handling, and any cash in the possession of the defendant at the time of arrest, whether the paraphernalia for consumption was actually found in his own residence. And I would add at (f), any later change in explanation in the VRI or subsequently. And in addition, I would add:

(i) The defendant’s state of health and whether, if employed, he could have maintained that employment as well as consume at the alleged rate.

(j) His apparent role, vis-à-vis his means and living conditions.

(k) Whether there are distinct, separate and identifiable amount of drugs wrapped in similar or dissimilar fashion.

The Court of Appeal in Wong Suet Hau Supra went on to say that where a trafficker says that part of the drugs were for his self-consumption, where appropriate, this element should be taken into account when sentence is imposed. That is because all sentencing must be based on a version of facts which properly reflects the justice of the case. But the court also acknowledged that defendants often seek to circumvent the rigour of the court’s sentencing powers by raising the issue of self-consumption in order to mitigate their sentence. That being the case, sentencers must examine such assertions with particular care and they should be slow to accept a bare assertion.

So the first step for this court is to consider whether it accepts that the defendant had some drugs in his possession for personal use. How does the court do that? The assertion must be raised by the defence, as it has been here, and it may or may not be accepted by the prosecution in whole or in part, but that acceptance or denial by the prosecution is not the end of the matter for the court must decide if the assertion is correct and as to how much.

The Court of Appeal felt that this could be dealt with without the need to hold a Newton hearing. That may be so where there are readily identifiable drugs for personal consumption and personal residential paraphernalia for that consumption plus a documented history of abuse. But if there is a substantial quantity of drugs recovered and a substantial quantity of drugs claimed to be for personal use, then the best way to do that may be by way of Newton hearing. But many defendants do not ask for such a hearing for fear of losing some part of their discount for plea under R v Lee Chiu Pang [1995] 2 HKC 523.

In this court and of course dependent upon the particular facts of the case, I consider it appropriate to indicate whether the defendant is at such a risk in order to give him every opportunity to satisfy the court on the balance of probabilities that what he contends is true. If he, nevertheless, chooses not to give evidence on his own behalf upon this issue and not to call any other evidence, as is his right, then the court is unlikely to have any evidence upon which to form a view, other than that which can be prayed in aid from the papers themselves, and that is the case here.

In any event, the defence raised the issue and it is open for the prosecution to make submissions in reply. The prosecution takes the view that you are a drug addict but that you would have consumed only that which a normal addict would have consumed and that your stores would have been replenished on a regular basis. Therefore, part of which you would have for your own consumption would not be particularly significant.

If the court comes to the conclusion that no part of the drugs were for personal consumption, then that is the end of the matter. That may be the case even if the defendant is a known addict with previous convictions for possession and with traces of drugs still in his system on admission to custody. Especially if he is found at night, in a public place, with numerous resealable plastic bags containing small amounts of drugs.

If on the other hand, the court comes to the view that some part of the drugs recovered were for personal use, it is very difficult to ascertain how much that should be without assistance from the evidence. How should the court quantify the amount? I do not find suggestions based upon percentages to be of any assistance. It should be based upon consumption rates which are realistic and pertinent to the case in hand. Someone who has been an addict for very many years and has several previous convictions for possession may very well consume more, and on a more regular basis, than say a 17-year-old.

In Attorney General v Ching Kwok Hung [1991] 2 HKLR 125, the court considered average consumption rates of ‘Ice’ and these provide a benchmark around which to analyse the particular facts of the case involving ‘Ice’. In that case, it was said that 1 gramme can provide 10 to 15 hits. ‘Ice’ can be used and reused and its effects last between two and 12 hours as opposed to, say, crack cocaine under which the high lasts for 20 to 40 minutes. It is more addictive than heroin and a user can be hooked after the first hit.

In the case before me, Mr Yeung submitted that some 20 per cent of the drugs found in your possession would be for your own use, but you had also said in interview that you had consumed 10 grammes in 4 days. Ten grammes is 100 to 150 hits. At that rate, you would consume 99 grammes in 40 days. That is, with respect, unsustainable. In the absence of other assistance, I just have to make an educated guess as to what you might have consumed yourself before you would have distributed these drugs and have been resupplied, which I take the view would have been on a regular basis.

That does not mean that the court is looking to fix a sentence for trafficking in dangerous drugs and for possession for the self-consumption element. What it seeks to do is to take into consideration the amount found to be for self-consumption when considering the appropriate sentence under Count 1, and having reached a figure for self-consumption, the court must not forget what was said in HKSAR v Mok Cho Tik [2001] 1 HKC 261, in which the court said that there is also to be a sentence for possession of that amount, it is also unlawful, and that there is a latent risk factor that some part of that amount might be sold on to others nevertheless, on an as and when basis, even if it is not sold on for reward.

So what would normally be the sentence if this was a sentence for possession of the amount which, in my educated guess, would be, say, 10 grammes? According to HKSAR v Mok Cho Tik, CACC 165/2000, which provides for a starting point range of 12 to 18 months for simple possession of a quantity of drugs a bona fide user would have in his possession, in that case, the defendant had 15.724 grammes of ‘Ice’ and the court indicated a starting point of 18 months.

So in this case, I found the defendant to have a further 10 grammes for self-consumption before replenishment of stock, given the professional nature of the enterprise, and therefore think a starting point of 18 months would have been appropriate if this had been a separate count. The starting point in Mok Cho Tik was enhanced by 12 months for the latent risk factor for what the court found to be non-commercial supply.

In this case, I find there is a latent risk of supply to others for profit and notionally, and I say notionally, I would enhance the sentence by 12 months to reflect that risk. The total sentence before discount for plea, notionally, would therefore have been 30 months. But this is not a separate count. So what is the approach to sentencing?

The trafficking of 994.66 grammes of ‘Ice’ falls to be considered under the guideline case of HKSAR v Abdallah [2009] 2 HKLRD 437, and for between 600 and 1,200 grammes of ‘Ice’, the starting point is 20 to 23 years. So for 994.66 grammes, therefore, the starting point after trial would 22 years. I have already mentioned that you will receive a further 3 months for your previous poor record in respect of trafficking, which makes 22 years and 3 months.

I have found that a notional 10 grammes was for personal consumption. If simply deducted from the overall amount, it would affect sentence by less than 3 months according to the guidelines in Abdallah. But considering that this would still mean that you were in possession of dangerous drugs and that there was a latent risk of supply to others for gain and would have been marked in some way in sentencing which would not be to your credit, given the notional figure of 30 months I have mentioned earlier, I therefore do not intend to reduce the sentence by any amount for self-consumption.

Trafficking in heroin hydrochloride falls to be considered under the guidelines in HKSAR v Lau Tak Ming [1990] HKLR 370. For trafficking in between 10 to 50 grammes, the sentencing range would 5 to 8 years. The starting point after trial for 47.6 grammes would be in the region of 7 years and 9 months. If you put the two together, that would mean a starting point after trial of 30 years in total.

I have therefore considered all that was said in HKSAR v Yip Wai Yin & Another [2004] 3 HKC 367 and HKSAR v Chan Yuk Leong, CACC 318/2013 and the authorities referred to therein. I think it fairer that I simply combine the two amounts which would then come to 22 years and 3 months and that is what I intend to do, plus the 3 months that I have mentioned previously for his poor record, making a total of 22 years and 6 months.

May I add that I have considered Mr Yeung’s proposition in HKSAR v X, CACC 109/2011, but I do not consider, in these circumstances, that a further deduction against the background of the facts of this case is appropriate. I have taken into account all that has been said on your behalf and the letters that were provided Mr Yeung.

But Mr Cheung, trafficking in dangerous drugs is an extremely serious offence and deterrence is the overwhelming consideration. So whilst I have heard some of your current circumstances, in the face of such a serious offence, there is nothing which can be said on your behalf which would warrant a more lenient course than the one I have indicated.

After deduction of your one-third discount for plea, the sentence which I will pass upon you for the count originally before the court, of trafficking in dangerous drugs, is one of 15 years. But you will serve 3 months for the breach of the suspended sentence for which I must sentence you again today, and that will be consecutive to the 15 years.

So that will be 15 years for Count 1 and 3 months additionally for the suspended sentence offences. So 6 weeks for each of the offences, the subject of the suspended sentence, additionally to the 15 years. So that is 15 years and what would appear to be, on the face of it, 15 years and 3 months.