HKSAR v. Cheung Wai Man

HCCC 173/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 173 OF 2017

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT:

On 29 August 2016, the attention of two police officers was drawn to the defendant who was walking in Reclamation Street in Kowloon. He was intercepted, and the police searched him. In the result, a quantity of dangerous drugs were found in the possession of the defendant.

This has resulted in a charge of trafficking in dangerous drugs, contrary to Section 4 of the Dangerous Drugs Ordinance. The particulars of the drugs that was seized by the police, and which are the subject of the charge, are 16.1 grammes of a crystalline solid containing 15.8 grammes of methamphetamine hydrochloride; 22.12 grammes of a mixture containing 17.48 grammes of heroin hydrochloride; and 9 tablets and one fragment, all containing a total of 0.14 grammes of midazolam.

The defendant was also carrying five mobile phones, and over $11,000 in cash. On arrest, he asserted that the drugs were for his own consumption, and he asked that the officers give him a chance. Further, he was interviewed in a video-recorded interview. That interview was under caution, and he reiterated that the drugs were for his own consumption.

The estimated value of the drugs seized from the defendant and which are the subject of the charge presently before the court are as follows:

1. Methamphetamine hydrochloride: $5,500

2. Heroin hydrochloride: $18,800

3. Midazolam: $580

Following the arrest of the defendant by the police, he was taken before a magistrate. The man who was finally brought before Mr Cheng Lim-chi, sitting as a magistrate at Kowloon City Magistracy. The accused was represented by counsel, and the charge was read to him.

The charge read to him is that which he now faces. To that charge, he pleaded guilty under Section 80C(3) of the Magistrates’ Ordinance, Cap 227. After further inquiries, the defendant confirmed that he admitted the entire Summary of Facts dated 19 May 2017.

Following the very careful conduct of the committal proceedings, the learned magistrate committed the defendant to the Court of First Instance for sentence.

The defendant is 42, and he is a married man. He is educated up to Form 2, I think it is, at secondary school level. At the time he was arrested, he was working in various jobs, and one of those was as a salesman of used mobile phones which he says brought him an income of something of the order of $20,000 a month. The significance of the amount, I will come to in a little while.

It appears that the accused is a heroin addict, and has been since he was 16 years old. He has received treatment at a Drug Addiction Treatment Centre in 1996 and 2010. He has a criminal record. He has minor offences of theft and common assault in June 1997. For the purposes of these proceedings, I ignore those previous convictions.

In relation to drugs, the position is, February 1996, possession of a dangerous drug, sentenced to DATC; 7 January 2004, traffic in dangerous drugs, two counts, sentence partly concurrent, sentence 3 years and 4 months; 14 November 2006, possession of dangerous drugs, fined $2,000; 3 June 2010, possession of a dangerous drug, sent to DATC.

In mitigation, both before me orally and in a very helpful written submission, counsel for the defendant has told me of his history as a drug addict. He is addicted to heroin and to “Ice”. On incarceration in Lai Chi Kok Remand Centre, his urine specimen revealed a positive test for amphetamines.

Counsel informed me that in relation to the $20,000 per month that he earns from selling used or second hand mobile phones, his level of income could not support his drug habit, and thus reduced him to selling dangerous drugs to others. He kept a proportion of the drugs for his own consumption.

In a letter addressed to me, the defendant recognises his drug addiction, and he apologises to the people who have been hurt, and who have been affected by the drugs, and that, in this case, forms two categories. The first category is himself. I cannot imagine what it is like to be addicted to heroin, I cannot imagine what it is like to be addicted to “Ice”. Even more so I cannot imagine what it is like to be addicted to both of those drugs at the same time. I am told by the defendant that he has turned to Christianity since he has been in prison, and I am affected by the fact that his pastor has taken the time to attend court today.

The inevitable sentence of this court, as you will soon learn, will have to be a prison term, and the Christianity that you have adopted, if you maintain it, will provide you with a great deal of support in the time that you will be in prison. And it will help you, if you maintain it, once you leave court. And it will help you to live that better life that you referred to in your letter.

Counsel also informed me that some of the drugs, and he gives a percentage, were for the consumption of the defendant. The community of Hong Kong, and as a result, the courts of Hong Kong, have, for many, many years, taken a severe view of drug-trafficking. This is hardly surprising, given that all three of the drugs which were trafficked by the defendant have terrible consequences for the individual. If anybody could attest to that, it will be the defendant himself. There are also consequences for the community. One of those consequences involves the deployment of medical and health facilities to help people who have become addicted to any or all of these drugs.

The view of the community and the court is reflected in the nature of the sentences and the level of those sentences traditionally imposed for drug-trafficking. To this end, the courts have provided sentencing guidelines for various forms of dangerous drugs, including the drugs the subject of this case.

Relevantly, in AG v Ching Kwok Hung [1991] 2HKLR 95, the Court of Appeal suggested that a person trafficking in between 10 grammes and 70 grammes of methamphetamine hydrochloride could expect to receive a sentence of 7 years and 10 years. However, more recently, in HKSAR v Tam Yi Chun [2014] 3 HKLRD 125, those guidelines were recast upon the basis that up to 10 grammes of “Ice” would normally attract between 3 and 7 years’ imprisonment and between 10 grammes and 70 grammes would usually attract a sentence of between 7 and 11 years’ imprisonment.

Given the savage addictive quality of “Ice”, this shift is hardly surprising. In addition to heroin hydrochloride, the Court of Appeal in R v Lau Tak Ming & Others [1990] 2 HKLR 370 have provides that a person who was convicted of trafficking in between 10 grammes and 50 grammes of heroin hydrochloride should receive a sentence 5 years and 8 years’ imprisonment.

In HKSAR v Yau Chi Wai HCMA 642/1997, the sentence for trafficking in quantities of midazolam under 500 grammes should be, as the court thinks fit.

All of the guidelines identified in this paragraph are on the premise that they are the appropriate sentence after trial.

A further dimension for the sentencing exercise which is required in the present exercise is to consider the issue arising from the fact that there is a collection of three different dangerous drugs in the possession of the defendant, and which he trafficked in.

The authorities identified different approaches, and in my judgment, the differences may well be more apparent than real. The approaches identified in the authorities recognised that a sentence for each component of the collection of drugs in which the defendant was trafficking might, if they were simply added together, might produce a result which is unjust. That is, that the final result, a reflection of the basic principle that sentence is not a mathematical exercise, and that the art of sentencing is devoted to producing a just result, given the circumstances of the defendant and the imperative which arises from the community and thus, the courts taking up a very strong view in relation to trafficking of dangerous drugs.

The essence of the appropriate approach is that if the drugs are approximately similar nature, then the approach known as the combined approach would be appropriate, and I cite HKSAR v Ko Ka Hing [2009] 4 HKLRD 826 para 3 in support of that proposition. The Court of Appeal in that case, comprising Cheung JA and Tong J said they might necessary have to be adjustments, even if the combined approach is used, to avoid absurdity. The concern to avoid absurdity and to do justice in the circumstances of the case was underlined in the decision of HKSAR v Chan Yuk Leong CACC 318/2013.

Meaning no disrespect to the distinguished members of that court, the focus would seem to me to be to promote the avoidance of absurdity, so as to promote a just result.

On the basis of the guidelines suggested for the individual drugs in respect of terms of imprisonment, they might start as follows: Methamphetamine hydrochloride, 15.8 grammes, 7.5 years; Heroin hydrochloride, 17.48 grammes, 5.5 years; Midazolam, 0.14 grammes, 1 month.

The first thing to say is that on any analysis, the circumstances which would apply to the sentencing for Midazolam would be that the sentence in respect of that would be concurrent with the sentence for the other two drugs. In terms of quantity and in terms of potency, so it appears to me, that would be the appropriate result.

I adopted the combined approach for methamphetamine hydrochloride and heroin hydrochloride. We see, reading the observations in HKSAR v Tam Yi Chun (above), as to the nature of “Ice” and judicially noticing the ravages of heroin hydrochloride, I judge these drugs to be so similar that no rational difference between them could be discerned for the purpose of sentencing. The sentencing approach of the courts of Hong Kong to these drugs is also so similar that such differences as there may be are minor. In my judgment, there is no practical value in taking one drug or the other as the base sentence, see HKSAR v Chan Luk Yeung (above) at paragraph 7.

Would there be any absurdity or injustice in adopting a total starting point of 13 years for trafficking methamphetamine hydrochloride and heroin hydrochloride? The answer is that in my judgment, the answer is certainly not. However, it may be a more appropriate starting point is 12 years. That may be a fraction merciful, but that is no bad thing.

The final consideration is the assertion, on behalf of the defendant, that a portion of the drugs that he was trafficking was for personal consumption, I am in no doubt that the defendant is addicted to both heroin and “Ice”. I therefore accept that some of the drugs in the possession of the defendant at the time he was arrested were almost certainly for self-consumption.

It is difficult to make an assessment as to what proportion would be for self-consumption, in his submissions in mitigation for the defendant, counsel suggest that the defendant intended to keep between 25 and 33 per cent of the drugs for his own consumption. In this regard, I have considered the factors suggested by the Court of Appeal in HKSAR v Tam Ling Yuen (above) and I gratefully acknowledge the practicality of the items suggested at paragraph 23 and 24 of that decision. And in that regard, the best I can say is that a substantial majority of the drugs in the possession of the defendant appear to me to have been for trafficking. Nevertheless, the quantity that were for self-consumption is itself substantial.

In HKSAR v Chow Chun Sang (above), at para 19 - 20, there is also a recognition that the possession of dangerous drugs is itself a crime, and any reduction for possession for personal consumption must recognise that fact. As I observed earlier, the defendant, of all people, would recognise that what he was potentially doing to others by selling them the drugs. However, to take that point too far is to miss the nature of addiction to heroin and the addiction to “Ice” suffered by the defendant who was obviously motivated by that addiction to sell drugs. Doing the best I can, I consider that a discount of 15 per cent off the basic starting point would be appropriate.

In the end, in an attempt to combine justice with mercy appropriate to this individual, the appropriate starting point after trial is 12 years. Reducing that by 15 per cent to allow for self-consumption upon the basis outlined just a moment ago, that produces from 144 months, a reduction to 122.4 months.

In my judgment, the defendant has pleaded guilty at the earliest opportunity, and a reduction of 33 per cent from the 122.4 months would result in a sentence of 82 months. The order of this court is that the defendant is sentenced to a term of imprisonment of 6 years and 10 months. That is the order of the court.