HKSAR v. Cheng Ka Kit

HCCC 362/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 362 OF 2015

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REASONS FOR SENTENCE

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1.The defendant has pleaded guilty to trafficking in a dangerous drug. The usual practice of the Court is to give a one third discount to the sentence to be imposed on the defendant for a timely plea of guilty. This is not a timely plea and has only come after serious disruption to the trial process because of the defendant’s conduct in these proceedings. It will not result in a one third discount to the sentence for the reasons I am about to give.

2.After the defendant had indicated that he would contest the two charges that he faced, his case was transferred to the High Court  where on 14 October 2015 it was listed for a pre-trial review on 11 November 2015 and a 5 day trial on 8 December 2015.  At the pre-trial review, the defendant, who was on legal aid and legally represented, confirmed his plea of not guilty, and arrangements were made and directions given for the trial fixed for 8 December 2015.  After discussion with the parties as to the length of trial, the trial dates were extended from 5 to 6 days. 

3.In a hand written letter from the defendant to the Court dated 18 November 2015, he stated that he was dissatisfied with his lawyers and had decided to retain new lawyers to represent him at trial.  He asked for advice.  By letter dated 26 November 2015, the defendant was informed of the following direction from the Court: “Trial is fixed to commence on 8 December 2015 for 6 days.  Arrangements for new legal representatives should be made as soon as possible.”  

4.On the first day of trial, the defendant appeared in person.  He said he had terminated the services of the lawyers assigned by legal aid and wished to engage private lawyers.  When inquiries were made of him as to what arrangements he had made to commission private lawyers, it was clear that little, if anything, had been done.  The case was adjourned to the following day for him to make arrangements for private legal representation.  Instead of arranging private legal representation as claimed, the defendant reapplied for legal aid and asked for an adjournment.  After the Court had expressed its serious concern about the state of affairs brought about by the defendant’s conduct, the trial dates were vacated and a second pre-trial review was fixed for 15 January 2016 with new trial dates fixed for 22 February 2016.  

5.At the second pre-trial review on 15 January 2016, the defendant was legally represented by counsel assigned by legal aid who confirmed the defendant’s plea of not guilty and again arrangements were made and directions given for the trial fixed to commence on 22 February 2016.  Counsel for the defendant identified additional matters that would be raised in the defendant’s defence during the course of the trial.

6.By letter dated 11 February 2016, counsel for the defendant advised the Court that his client would plead guilty to the two counts that he faced. 

7.I will have more to say about this later in my reasons but before I do, I will briefly describe the facts agreed in relation to the two counts to which the defendant has now admitted his guilt.

8.On 2 February 2015, the police carried out a search under search warrant of the premises at 77 Ki Lung Street, Mongkok.  The defendant was intercepted by the police in the staircase of the premises who upon being searched was found to have inside his front trouser pocket a quantity of heroin, consisting of 74 pellets wrapped in thin green plastic.  He was arrested and a brief struggle ensued with the police.  After being cautioned, he replied, “Ah Sir, please give me a chance.  For this white powder, I just delivered it for others.”  These are the drugs specified in Count 1. 

9.The defendant was told he would be taken to a flat in the premises where a further search would be conducted by the police.  He became agitated and initially refused to go but later accompanied the police to the flat.  Entry to the flat was gained by keys found in the possession of the defendant.  Inside the flat were two other persons, one male and one female.  A search of the flat uncovered a black plastic bag inside the drawer of a television cabinet which contained a quantity of heroin in the same form as the drugs  previously found on him, consisting of small pellets covered in thin green plastic (a total number of 287 pellets).  Most of the pellets were in plastic bags and some others in a black box.  There was also a metal container with white powder with no narcotic content in it.  These are the drugs specified in Count 2.  Also found inside the flat were other items and paraphernalia used for packaging and distributing drugs, such as an electronic scale, green plastic sheeting, forceps and scissors.  He was further arrested and cautioned and he replied, “Ah Sir, for this white powder and the white powder you found just now, I simply delivered them for others.”

10.In a later interview under caution, the defendant admitted that he was in the habit of taking drugs in the flat where he would usually smoke white powder and might in the future as well, and that the drugs specified in Counts 1 and 2 belonged to “Ah Sang” who allowed him on the day of the offence to go to the flat to smoke some of the white powder “for fun”.

11.The total quantity of heroin hydrochloride in the present case is 71.91 g.  The estimated street value of the drugs at the time of the offence was $81,915.96.

12.The defendant is 33 years of age, married with two children, a daughter aged 12 and a son aged 18 months.  At the time of the offence, he lived with his wife and children in rented premises in an estate in the New Territories.  He was educated up to Form 2 level and after leaving school worked as a delivery worker from 2013 to 2014 but since then has been unemployed.  He admits that he is a drug addict and consumes heroin and ketamine. He has a criminal record for claiming to be a triad and common assault for which he received very minor penalties.  In mitigation, it was submitted that he would attend the flat to consume heroin and because of his circumstances he agreed to be “a runner” for the person to whom the drugs belonged “Ah Sang”. 

13.The sentencing guidelines for trafficking in heroin are set out in the case of R v Lau Tak Ming [1990] 2 HKLR 370. The total quantity of heroin of 71.91 g falls within the band between 50 and 200 g for which a term of imprisonment after trial is 8 to 12 years.  As discussed in that case, within the suggested bands a sentencing court may take into account various factors which may warrant an enhancement of the sentence such as, the profit and place of sale or distribution of the drugs, the number of packets involved, the type of mixture containing the drugs and the degree of involvement of the offender and any previous history of drug offences, or a reduction of the sentence, such as, matters of mitigation, including a timely plea of guilty or assistance to the authorities.  With this in mind, I will adopt a starting point of 8 years and 7 months’ imprisonment.

14.It is a stated principle of sentencing that an offender is entitled to a one third discount to his sentence for a timely plea of guilty.  However, the granting of a discount of sentence of one third to a defendant who pleads guilty is not a rigid rule that is blindly given in every instance, no matter what the circumstances of the plea.  See my comments in HKSAR v Mok Man Wai and Anor, HCCC 159/2014, 18 February 2016, unreported.

15.The principle that guides the granting of this discount is that it is made “timely” or “in good time” and thereby has saved court time and resources and avoided the necessity of conducting a trial.  It is given in recognition of the display of remorse and contrition by the defendant and the resultant benefits to the administration of justice in that it brings finality to the case and saves court time and resources and avoids the conduct of an unnecessary trial and putting witnesses, in particular victims, from going through the ordeal of giving evidence.

16.The defendant has not entered a timely plea of guilty and by his conduct he is not deserving of a full one third discount.  At the first pre-trial review arrangements were made for the trial of the defendant.  This involved making sure that everything was in readiness for the trial, including the arranging of witnesses and the presentation of evidence by the prosecution.  The defendant sacked his lawyers, who had been assigned by legal aid, some four weeks before his trial and made little if any effort to commission new lawyers, notwithstanding the direction from the Court that he be ready to proceed with his trial on 8 December 2015.  On the first day of trial, he was without legal representation and requested an adjournment.  It resulted in the trial dates being vacated and the defendant reapplying for legal aid. At the second pre-trial review, arrangements were yet again made in readiness for his trial after which the defendant informed the court of his plea of guilty.  From my overall assessment of the situation, I am only prepared to give the defendant a discount of 28 per cent as it was not a timely plea and it has caused serious disruption to the administration of justice.  This brings the defendant sentence to 6 years and 2 months’ imprisonment.

17.In mitigation, it was submitted on behalf of the defendant that some of the drugs that were in the flat as specified in Count 2 were to be consumed by him.  According to the agreed facts, the defendant stated in a cautioned interview that he would go to the flat to smoke heroin.  The drugs in Count 1 were in the process of being delivered by the defendant when he was apprehended by the police, so there is no question that he was to consume some of these drugs.  The drugs in Count 2 were also to be delivered by him.  The 1^st defendant relies on his statement under caution that he smoked heroin at the flat and might do so in the future.  Even accepting that he was to smoke some of these drugs, it would be a very small quantity, and in the circumstances I will grant a slight discount to his sentence, which I reduce to 6 years’ imprisonment. 

18.I have imposed this sentence by combining the narcotic weight of the heroin in the two counts.  I will apportion the sentence in relation to the two counts as follows.  On Count 1, I will adopt a starting point of 4 years and 6 months’ imprisonment which I will reduce by 28 per cent to 3 years and 3 months’ imprisonment.  There will be no further discount on this sentence for self consumption.  On Count 2, I will adopt a starting point of 8 years and 4 months’ imprisonment which I will reduce by 28 per cent to 6 years’ imprisonment and by a further 2 months for self consumption to 5 years and 10 months’ imprisonment.  To bring it in line with the sentence of 6 years’ imprisonment, I will make 2 years and 9 months’ imprisonment of the sentence on Count 2 consecutive to the whole of the sentence on Count 1 of 3 years and 3 months’ imprisonment.

Mr Andrew Raffell, counsel on fiat, for HKSAR

Mr Richard Grant Turnbull, instructed Eli K. K. Tsui & Co., assigned by Director of Legal Aid, for the defendant