HKSAR v. Cheng King Ho

DCCC 409/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 409 OF 2016

----------------------

----------------------

---------------------

Reasons for Sentence

---------------------

1.The defendant pleads guilty to Charge 1, trafficking in dangerous drug, and Charge 2, possession of offensive weapon under the Summary Offences Ordinance. Charge 3 that he is also facing is on the application of the prosecution left on the court file not to be proceeded with without the leave of the court.

2.On 15 February 2016, at around 6.35 pm, police officers executed a search warrant at defendant’s residence in Tai Po. Upon search, on a coffee table in the living room were found 24 plastic bags containing a total of 4.79 grammes of a solid containing 3.52 grammes of cocaine.

3.There were also packaging paraphernalia, including eight plastic bags containing a total of 786 small plastic bags, an electronic scale, a small box containing 28 small plastic bags and HK$10,230 cash on the coffee table.  Two beef knives wrapped with newspaper were found on two locations in the suspended ceiling of the living room.  And two other sums of cash were also found, namely, RMB700 by the side of the TV in the living room and HK$20,000 hidden in a closet of the bedroom.  There were two notebooks with various markings. 

4.The defendant was arrested.  Under caution, in a video-recorded interview, the defendant stated that the drugs seized were cocaine for his own consumption.  He bought 30 packets for HK$8,000 the day before and had consumed a few bags.  The beef knives were for his own protection as he feared that he might be haunted by loan sharks.  The defendant admitted that the notebooks were his and he had written some scribbles on them although he declined to explain its contents.

5.He claimed that cash of around $10,230 was borrowed from a friend as his girlfriend was three months pregnant at the time.  The remaining HK$20,000 was his girlfriend’s while the sum of RMB700 belonged to him.

6.According to the information of the intelligence division of the Narcotics Bureau, the average retail price of cocaine in February 2016 was around $1,000 per gramme.  The approximate retail price of the cocaine seized from the defendant was HK$5,140.

7.The defendant is aged 20.  He has three previous convictions, including one for trafficking in dangerous drug for which he was sentenced to DATC on 27 April this year.  I am told that he is still receiving his treatment there.  

8.In mitigation, Mr Cheng, counsel for the defendant, tells the court that the defendant, though single, is living with his girlfriend who is now pregnant, expecting birth of the child in September this year.  If he is sentenced to gaol, he will not be able to see the birth of his child.  He asks for a lenient sentence. 

9.Mr Cheng cites three cases in his list of authorities: R v Lau Tak Ming¹ and R v Rojas² are sentencing guidelines for trafficking of cocaine.  HKSAR v Cheng Chi Wah³ was an appeal relating to the possession of an aluminium pipe in a street prosecuted under the Summary Offences Ordinance.  I do not think the third case is of assistance to this court as the case involved an aluminium pipe and was uncontested because the appellant abandoned his appeal.

10.Submitting there was no evidence that the defendant would use the knives in a public place, Mr Cheng asks the court to pass concurrent sentences for the two offences as they were disclosed in the same incident.  Mr Cheng clarifies, upon query by this court, that the defendant is not relying on own consumption of the dangerous drug in this case as his mitigation.

11.While the defendant is under 21 years of age, section 109A of the Criminal Procedure Ordinance does not apply as trafficking in dangerous drug is an excepted offence.  Indeed, youth factor pales into insignificance because of the serious nature of the offence.  The only option of sentence in this case is imprisonment. 

12.Trafficking in dangerous drugs is a very serious offence.  The Court of Appeal has laid down guidelines in the two cases cited by Mr Cheng.  The narcotic of the dangerous drug in this case is 3.52 grammes of cocaine.  I take 2 and a half years’ imprisonment as the starting point of the sentence in Charge 1. 

13.On Charge 2, each of the two knives has a sharpened blade of the length of about 46 cm.  They are very dangerous weapons and might be lethal.  I note that they were not possessed in a public place.  I take 6 months’ imprisonment as the starting point. 

14.I am afraid that the defendant being unable to see the birth of his son cannot be a mitigating factor for this type of serious offence.  There was no effective mitigating factor in this case except the defendant’s plea of guilty for which he will be given one-third reduction of sentence.

15.I cannot agree with Mr Cheng that the sentences in the two charges should be ordered to run wholly concurrently.  The two offences have different criminalities.  However, I will take into account of the principle of totality and order partly concurrent sentences.

16.On Charge 1, the defendant is sentenced to 20 months’ imprisonment whereas on Charge 2, 4 months’ imprisonment, 2 months of which shall run concurrently with the sentence of Charge 1.  The total term of sentence is therefore 22 months’ imprisonment.

17.By operation of law under section 6A of the Drug Addiction Treatment Centres Ordinance, the detention centre for DATC that the defendant is now serving shall cease to have effect.