HKSAR v. Cheung Man Hau and Another

DCCC 100/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 100 OF 2016

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Reasons for Sentence

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1.The 1st defendant, on the first day of trial, pleaded guilty to Charge 1, trafficking in dangerous drugs. The 2nd defendant pleaded not guilty to both charges that she faced, trafficking in dangerous drugs and possession of apparatus fit for inhaling drugs, and the 2nd defendant has been convicted after trial.

2.I do not intend to repeat the facts of this case.  I set out the facts and gave my full reasons for conviction in my verdict.  In short, the 2nd defendant was in this hotel from 3 November to 5 November 2015, and I am sure she had with her dangerous drugs and equipment to inhale dangerous drugs.  Those drugs included ketamine, “Ice” and cocaine, and there was other paraphernalia related to drug taking and trafficking in her possession such as an electronic scale, small empty resealable plastic bags, and straws.

3.On the evidence, the 1st defendant first went to the 2nd defendant’s hotel room at about midnight on 4 November.  He stayed for four or five hours.  In that time, both of them inhaled dangerous drugs, “Ice” and cocaine.  I found that the 1st defendant went back later that day, about midday.  Again, they both took drugs together.  The 2nd defendant had to check out, and before they left the room, I found that the 2nd defendant asked the 1st defendant to take the ketamine and the drugs into his possession.  The ketamine had to be delivered somewhere to someone, and in return, as a reward, the 1st defendant could keep the rest of the “Ice” and cocaine.  The 1st defendant agreed to do this.  The 1st defendant assumed the 2nd defendant did not want the risk of carrying the dangerous drugs in public.

4.The evidence shows that before he left the hotel, the 2nd defendant passed all the bags to him.  After he left the hotel and crossed the road, the 1st defendant was stopped by the police.  Not long after, the drugs and other paraphernalia were found.

5.The 1st defendant’s evidence was that he had not yet had the discussion with the 2nd defendant where they were taking the drugs, when, and to pass to whom.

6.The 2nd defendant did not leave the hotel at the same time as the 1st defendant because she went to check out.  When she left the hotel, she did not see the 1st defendant.  According to her evidence, she herself was stopped and questioned by police officers.  She was searched, and released when nothing suspicious was found on her person.

7.I will repeat that the drugs of Charge 1 include the following:  18.41 grammes of a powder containing 14.42 grammes of ketamine; 3.22 grammes of a crystalline solid containing 3.15 grammes of “Ice”; and lastly, 1.17 grammes of a solid containing 0.88 grammes of cocaine.

8.In mitigation I have heard the following.  The 1st defendant is 22 years old and single, and works as a salesman.  I have had a letter from a social worker who has come into contact with the defendant since 2010.  The defendant has received some support as well as participated in activities and voluntary work.  The social worker is familiar with him.  The social worker believes the defendant is deeply remorseful for this incident as well as his behaviour in the past.  He intends to, after serving this sentence, go back to his family, and find gainful employment.  The social worker is also very familiar with the defendant’s mother and has a message from her that she is very supportive.  She herself believes he is now truly remorseful.  She believes from the way he communicates with her now that he has matured.

9.The defendant is not a man with a clear record. He has five previous convictions.  The pertinent ones to me are the following. A trafficking in dangerous drugs conviction; however, he was 14 years old when he was convicted of this charge, and sentenced to a rehabilitation centre order.  In 2010 he was convicted of possession of dangerous drugs and was put on probation.  Lastly, in 2013, he was also convicted of possession of dangerous drugs, where he was sent to drug addiction treatment centre.

10.Unfortunately, he was still a drug addict when he was arrested.  A urine test conducted by the Correctional Services Department showed that two days after he was arrested, he had in his system “Ice”, cocaine and benzodiazepine, which is a Valium/Xanax type drug.

11.The 1st and 2nd defendants have known each other for years.  They became flatmates about five months prior to this offence.

12.The 2nd defendant is also a drug addict.  She also has previous convictions.  In February 2013, she was convicted of possessing dangerous drugs, and sentenced to a probation order.  Within three months of that order being imposed she was in breach of it, and sentenced to drug addiction treatment centre.  She was also, in July 2013, again convicted of possession of dangerous drugs and sentenced to a concurrent drug addiction treatment centre order.  I have been told she is still a drug addict, and the evidence of her taking drugs in the hotel room with the 1st defendant would support that.

13.In my verdict I found that the paraphernalia for inhaling drugs belonged to her, as did all the other items in the paper bag.

14.The 2nd defendant is 24 years old and a part-time worker, earning between $8,000 to $12,000 a month.  As I have said, she does not live with her family.  Her parents and younger brother live together.  Her younger brother is still a student.  Despite her addiction and wayward lifestyle, her mother has been here today in court to support her.

15.In this case, the facts are, on the face of it, the 2nd defendant supplied the drugs to the 1st defendant to courier them on her behalf.  Both are traffickers, in my finding.

16.Normally, where there are mixed drugs in one charge, one approach in finding an appropriate starting point would be the combined approach.  Counsel submit this would be the appropriate approach in this case.  I have referred myself to the authority of HKSAR v Yip Wai Yin [2004] 3 HKC 367.

17.Normally, I would have taken “Ice” here to be the most serious and potent drug.  However, the evidence is, which I have accepted, that ketamine was the drug to be delivered.  I intend to take that as the first drug to consider an appropriate starting point.  Also, there are submissions by both defence counsel that part of the dangerous drugs in this charge was for self‑consumption.

18.I have taken into account the authority of HKSAR v Chow Chuen Sang [2012] 2 HKLRD 121, where the Court of Appeal was of the view that if that submission and mitigation is accepted by the court, depending on the facts of each case, a discount of between 10 to 25 per cent is possible.  I also referred myself to the authority of HKSAR v Tsang Chung Keung CACC 165/2014, which discusses at length and refers to other cases where this submission is put forward.

19.As I have said, I accepted that the 1st defendant agreed to take possession of the drugs, deliver the ketamine, and for his reward, take the “Ice” and cocaine for his own use.

20.I will find that the “Ice” and cocaine was all for self‑consumption.  Obviously I cannot ignore possession of these two types of drugs.  A latent risk of possessing these drugs still exists.

21.Where the 2nd defendant is concerned, I found she gave the 1st defendant the “Ice” and cocaine as a reward for holding, delivering and taking the risk of possessing the ketamine.  So actually, the “Ice” and cocaine was not hers for consumption.  Despite her being an addict, I find she cannot rely on the submission that part of the drugs in Charge 1 were for her own consumption.  In short, she trafficked all the drugs of Charge 1.

22.Obviously the 1st and 2nd defendants, being flatmates and both drug addicts, the 1st defendant may have shared his “Ice” and cocaine with her; he may not have.  Considering their habits, living arrangements, and the evidence of their drug‑taking activity in the hotel, it is probably very likely he would have.

23.I also have had to mathematically calculate the tariffs for trafficking these three types of drugs.  If they were dealt with separately, where the “Ice” is concerned, in the authority of Attorney-General v Cheng Kwok Hung [1991] 2 HKLR 125, the Court of Appeal held where between nought to 10 grammes is trafficked, a 3 to 7-year starting point would be appropriate.

24.Where there is 3.15 grammes, as in this case, mathematically, a 4‑year 3‑month starting point would be appropriate.

25.For the ketamine, I have taken into account the authority of Secretary for Justice v Hii Siew Cheng [2008] 3 HKC 323.  The Court of Appeal held that where between 10 to 50 grammes of ketamine is trafficked, a 4 to 6-year starting point is appropriate. 

26.For 14.42 grammes of ketamine here, a 4‑year 3‑month starting point would be appropriate.

27.For cocaine, I referred myself to the authority of Attorney‑General v Rojas [1994] 2 HKCLR 69, where the Court of Appeal held that tariffs for cocaine should be the same tariffs as that applied to heroin.  That is, where up to 10 grammes is trafficked, a starting point of between 2 to 5 years would be appropriate. 

28.Therefore, for 0.88 grammes, I would find a 2-year starting point appropriate.

29.As I have said, I take the evidence here to be the ketamine would have been trafficked.  In coming to a starting point for this quantity of ketamine, I would also take into account that the 2nd defendant has no previous trafficking dangerous drugs convictions, and although the 1st defendant does, he was 14 years old at the time.

30.For Charge 1, for both defendants, I would take a starting point of 4 years, which is what I calculate is appropriate for the quantity of ketamine.

31.For the 1st defendant, as I have said, I accept the other drugs were for his own use, but I cannot ignore the latent risk.  If the other drugs had been for trafficking, I would have added 1 year to the 4-year starting point to reflect the combined approach.  However, as I accept those drugs would have been for his own consumption, I will reduce that by 9 months to 3 months.

32.Therefore, for the 1st defendant, the starting point for Charge 1 will be 4 years and 3 months.

33.The 2nd defendant, as I have said, is in a different situation to the 1st defendant.  I find that despite her being an addict, she cannot rely on the submission that the other types of drugs, “Ice” and cocaine, were for her own consumption and should mean a reduction.

34.I will take that 4-year starting point for the ketamine and add 1 year for the other dangerous drugs, the “Ice” and the cocaine, to reflect the combined approach, but I will reduce that 1 year by 6 months to reflect, in my view, the unique relationship between the 1st and 2nd defendants.  No doubt they would have shared this together.

35.Therefore, for the 2nd defendant, for Charge 1, the starting point is one of 4 years and 6 months.

36.For the 2nd charge, I will take a starting point of 6 months’ imprisonment.

37.I therefore now have to consider what discounts are applicable. 

38.The 1st defendant, normally, for a plea, would have been entitled to a discount of one-third from the starting point, but the 1st defendant has given evidence as a prosecution witness.  I accept his evidence as credible, and find him entitled to a discount of just under 50 per cent.  I reduce the starting point by 2 years and 2 months.

39.The 1st defendant, for Charge 1, is sentenced to 2 years and 2 months.

40.The 2nd defendant was convicted after trial.  I find no discount applicable.

41.The 2nd defendant, for Charge 1, is sentenced to 4 years and 6 months’ imprisonment; for Charge 2, 6 months’ imprisonment.  I consider the totality principle and the nature of the two charges.  I would order that Charges 1 and 2 run concurrently.  That is a total of 4 years and 6 months’ imprisonment.

42.I have to clarify the sentence.  It is 2 years and 2 months.  When I say I deducted 26 months, I meant to say I deducted 25 months, because 25 months is just under 50 per cent.  26 months would be over 50 per cent reduction, so I am making it  just under 50 per cent.  So I have reduced the starting point by 25 months, which leaves a sentence of 2 years and 2 months.