HKSAR v. Cheng Man Kwong, Rahman
Read the full judgment text of DCCC 423/2016 on BabelCite. This District Court judgment.
1. The Defendant has been convicted on his own plea on one count of trafficking in a dangerous drug, contrary to Sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134, the dangerous drugs being 5.46 grammes of a solid containing 5.16 grammes of cocaine.
Cites 5 cases
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DCCC 423/2016 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 423 OF 2016 -----------------
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------------------------------------------- REASONS FOR SENTENCE ------------------------------------------- 1.The Defendant has been convicted on his own plea on one count of trafficking in a dangerous drug, contrary to Sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134, the dangerous drugs being 5.46 grammes of a solid containing 5.16 grammes of cocaine. Facts 2.Facts admitted by the Defendant disclose that at about 10.05 a.m. on 29th October, 2015, the Defendant stopped his car outside Ground floor, Chung Ping House, Chung On Estate, Ma On Shan, New Territories. Finding that the Defendant was acting furtively in his car, police officers intercepted him and conducted a search of his body and of the car. Upon searching the car, 4 transparent resealable plastic bags containing cocaine were found from a drawer under the instrument panel. One cigarette box marked “Marlboro” was found in another drawer at the left side of the driver’s seat. 20 small resealable plastic bags packed in two large resealable plastic bags containing cocaine were found inside the cigarette box. The Government Chemist confirmed that these 24 resealable plastic bags contained a total of 5.46 grammes of a solid containing 5.16 grammes cocaine. 3.Also found in the car were two other “Marlboro” cigarette boxes containing 11 transparent plastic bags and HK$530, cash of about HK$10,900 in the Defendant’s bag, 2 mobile phones and cash HK$700 and RMB200 in the Defendant’s wallet. Under caution, the Defendant said that the drugs were for his own consumption. His residence in Yuen Long was also searched but nothing suspicious was found. In the video-recorded interview under caution, the Defendant said again that he had bought the drugs on the offence date from an unknown man for HK$7000. He also said he had all his money with him as he did not have a bank account after being made bankrupt, and he used the two mobile phones. He had borrowed the car from a friend since June, 2015 and had put the drugs in the car. He had gone to Ma On Shan for no particular purpose. He said he took drugs every 2 to 3 days, or once a week, and kept the empty resealable bags after his consumption. He spent about HK$1,000 for each purchase. A photo album of 11 photographs, depicting the vehicle and the positions in the vehicle where the dangerous drugs were found and the dangerous drugs themselves as well as the Government Chemist’s Certificate were produced by agreement. In response to questions from the Court, the Prosecution confirmed that the 11 empty resealable plastic bags that were seized had been examined and there were no traces of dangerous drugs in them. The market value of the seized dangerous drugs was HK$7,704. Ms. Lau for the Defendant confirmed this and said this was admitted by the Defendant, as did the Defendant himself. 4.I was satisfied beyond all reasonable doubt that the facts admitted supported the charge and accordingly, I convicted the Defendant on the charge that he faced. Previous convictions 5.The Defendant has a clear record. 6.The Antecedent Statement was read into the record by the Prosecution. No issue was taken on its contents by Ms. Lau for the Defendant. This disclosed that the Defendant was born in Hong Kong and now aged 50 years. He had been educated to Form 3 in Hong Kong. He had previously worked as a truck driver but was unemployed at the time of his arrest on 29th October, 2015. He was in good health and said he was a cocaine drug abuser. He was married and lived with his wife in Yuen Long. Mitigation 7.Ms. Lau on behalf of the Defendant submitted that at the time of his arrest the Defendant worked as a casual worker in a construction materials storage company and earned about HK$10,000 each month. Prior to that, he had been a truck driver and a cross-border truck driver. However in 2012 he started a construction and decoration company with a partner, but was betrayed by his partner, who took all the money of the company and disappeared. The company employed many workers. The Defendant took the responsibility to pay off the workers. As his partner had taken all the money of the company, the Defendant had to borrow money from money lenders to pay off the workers. The company could no longer continue. The Defendant was unable to pay the loans and went into bankruptcy in October, 2014. As a result, he was not allowed to maintain any bank accounts. He did not apply for any social assistance. Instead he took a job as a packing worker in a construction materials storage company. He worked there for half a year, and then the company closed down – he then worked as a casual worker. Ms. Lau submitted that the Defendant was married and had been married for 24 years – his wife was in Court to show her support of him. They have no children. Ms. Lau also addressed the Court in respect of the various health problems that the Defendant’s wife has had over the years. The Defendant has always been very supportive of his wife. 8.When the Defendant was working as a packing worker in 2015, he came to know a person – the person came to know of the Defendant’s family issues – the Defendant was desperate and sad, and the person suggested he use cocaine to relieve his stress. The Defendant tried cocaine twice. The person persuaded the Defendant to deliver dangerous drugs and he would receive dangerous drugs for his own use for free. The Defendant very stupidly agreed, without thinking of the consequences. He was now very remorseful. 9.After hearing Counsel in mitigation, I adjourned sentencing until today, calling for a Background Report, remanding the Defendant in custody. That report is now before me. Mr. Lau for the Defendant informs me that she has explained the report to the Defendant and he agrees with the contents, save that he says he began toying with cocaine in 2015. The report confirms much of what was said by Ms. Lau in mitigation and the contents of the Antecedent Statement. Ms. Lau also submitted letters in mitigation from the Defendant, his wife and his 2 sisters. Sentencing Considerations 10.The Defendant’s greatest mitigation is his plea of guilty, which reflects remorse on his part. I have carefully considered all that has been urged by Counsel on behalf of the Defendant as well as the contents of the Background Report and the various mitigation letters. Personal circumstances pale into insignificance for trafficking in dangerous drugs cases. 11.The maximum sentence on conviction upon indictment for trafficking in dangerous drugs is a fine of $5 million and imprisonment for life. 12.In Attorney General v Rojas [1994] 1 HKC 342, Silke VP observed that the harm of cocaine was closely linked to the harm of heroin and it was held that the sentencing guideline for trafficking in heroin as set out in R v Lau Tak-ming [1990] 2 HKLR 370, was applicable to cocaine. It is not disputed that for a quantity of up to 10 grammes of cocaine, the sentencing tariff is 2 to 5 years’ imprisonment. 13.The quantity of cocaine involved is 5.16 grammes. Given the narcotic quantity and applying the tariff, I would adopt a starting point of 42 months. Self-consumption 14.The Defendant submits that there should be a deduction from the starting point for the Defendant’s self-consumption of the drug. The Court of Appeal in HKSAR v. Wong Suet Hau & Anor {2002} 1 HKLRD 69 at 79A-H said there were 8 factors to be considered in respect of determining the portion of the dangerous drugs intended for a defendant’s own use. The usual discount given ranges from 10% to 25% (see HKSAR v. Chow Chun Sang [2012] 2 HKLRD 1116; HKSAR v Cheuk Kin Man [2010] 5 HKLRD 558; HKSAR v Law Num Chun [2014] 5 HKLRD 500; HKSAR v Tsang Chung Keung [2015] HKLRD 450). In HKSAR v. Chow Chun Sang, supra, the Court of Appeal held at p. 1126:
The Court of Appeal did not set down what percentage would be appropriate but held it would depend on the facts of every case. 15.Here, Ms. Lau submitted that the cocaine in the 4 resealable plastic bags found in the drawer under the instrument panel was to have been for the Defendant’s own use – these contained a total of 0.91 grammes of a solid containing 0.86 grammes of cocaine – that would be about 16.76% of the total quantity. 16.Mr. Donald for the Prosecution adopts a neutral stance - he submits there is no evidence of some of the drugs being for self-consumption save for the Defendant’s own assertion. 17.The Defendant has never been convicted of any offences in the past. Ms. Lau says the Defendant has only recently begun to consume cocaine to relieve his sadness and stress. His immediate response to the caution administered to him upon arrest was that he had the cocaine for self-use. There was no direct evidence of sale of any drugs. Nor is there any evidence that the Defendant was involved in premeditated and organized trafficking. I have borne in mind the quantity and packaging of the dangerous drugs in question. I have also borne in mind the latent risk of the drugs for self-consumption falling into the wrong hands. Of course, any determination of a percentage must involve an element of speculation and must of itself be an approximate figure. 18.In all the circumstances, I am prepared to grant him a discount in sentence on the ground of partial consumption. What I shall do, rather than indicating a percentage, is to indicate a figure by which the starting point for sentence will be reduced. I believe it should lie somewhere between 10 to 15 %. I shall discount the starting of 42 months by 6 months, bringing the starting point down to 36 months. The Defendant is entitled to a one-third discount from this figure for his plea. This gives a figure of 24 months imprisonment or 2 years’ imprisonment. The Defendant is sentenced to 2 years’ imprisonment.
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