HKSAR v. Cheng Pak Hin

DCCC 1041/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1041 OF 2016

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Reasons for Sentence

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1.The defendant has pleaded guilty to a single offence of trafficking in a dangerous drug. The quantity of narcotic involved is 20.40 grammes of cocaine.

2.The facts relied on by the prosecution and agreed by the defendant show this was a simple stop and search case.  On the evening of 12 August 2016 there was an anti-narcotics operation near the Tai Po Sports Association in Taipo.  The defendant was stopped and searched.  A cigarette box was found on him which contained a transparent resealable plastic bag that contained the drugs.  He also had a mobile phone and some cash.  Under caution the defendant said the drugs were for his own consumption and asked for a chance.

3.The value of the drugs is $39,150 and the defendant admits formally that he possessed those drugs for the purposes of trafficking in them. 

4.The defendant’s antecedents have been admitted. He is now aged 20.  He has a criminal record in 2013 for wounding and criminal damage for which he was sent to a Detention Centre.  Other antecedent information show that he left school at secondary form and worked as a part-time worker.  In compiling the antecedents he gave Police the information that he was a drug addict and consumed up to 10 grammes of cocaine a week and the defendant maintains that position before this court. 

5.As far as his family is concerned I am referred to details about his mother and father.  His father has been unwell following a car accident and he is not in a position to work.

6.It is a mitigation the defendant sets out he is remorseful for this matter, as set out in a letter written to the court.  Also reference is made by counsel to the fact the defendant would have consumed a portion of the drugs himself and he said so at the time of his arrest. 

7.It is common ground that the guideline for sentence in this matter lies within the band of 10 to 50 grammes of the drug cocaine where the court can determine a starting point of between 5 to 8 years’ imprisonment and as far as the determination of that starting point is concerned it is not necessarily an entirely mathematical calculation.  In any event, the quantity of 20.40 grammes would place the starting point for sentence at the lower end of the band.

8.Other factors besides the quantity must be the defendant’s age.  He is only 20 and were this not such a serious matter he might be considered for some form of rehabilitative sentence.  He has one previous conviction but no previous convictions for drug offences and also the case is based on a simple stop and search which would put the defendant at the lowest level of trafficking.  He would be at street level supplying friends and acquaintances. 

9.Taking all those factors into consideration, I shall simply take a starting point at the lowest point on the guideline of 5 years’ imprisonment.  I see no other factors that would aggravate that starting point. 

10.The next question is whether there are, besides his plea of guilty, are there any other mitigating factors that must be considered.  The defence say in this case the defendant is entitled to a further discount from that starting point because of his self-consumption of the drug.  The position appears to be at present that where the court determines that a significant portion of the drugs would be for the defendant’s own self‑consumption then a discount of between 10 to 25 per cent can be made from the original starting point.  What is a significant portion is unclear. The case of HKSAR v Liu Ming Sze says that 10 per cent is not sufficient. 

11.The submission in this case is based on the fact that the defendant is said to be a drug addict.  He said that at the time of compilation of his antecedent statement.  In a letter to the court the defendant says since the last summer vacation he has been consuming drugs after being introduced to it by friends.  He smokes the drug.  In submission it was said that he consumed between 1 to 2 grammes per day which would be up to 10 grammes per week.  The 20-odd grammes of cocaine would compile the defendant’s weekly purchase of drug which means about half would be for self-consumption and that is said that would compile a significant portion of the drug. 

12.It must be clear that to make an objective evidential calculation of this is very difficult.  The defendant has been in custody since August of 2016.  It would be very difficult to obtain any medical evidence as to the defendant’s level and rate of consumption were it assessed now.  Also, it involves a projection into the future as to how much the defendant might be able to consume.  The best the court can obtain is what I describe as an informed estimate. 

13.There seems no reason for me to discount the defendant’s contention that he is a drug addict and that, as he said at the time of arrest, that he consumes the drug that he sells and that his levels of consumption are within what would normally be consumed by a consumer of such a drug.  I consider the defendant is able to discharge the evidential burden required to show that he is a consumer of the drug and that his consumption would be a significant portion of that drug.

14.What I shall do is assess the discount that should be given from the present starting point as one in the region of 10 per cent.  I consider the starting point at this point should be one of 4½ years in prison.  After deduction for the defendant’s plea of guilty which in this case would a one-third discount, that leads to a sentence of 3 years’ imprisonment or 36 months.