HKSAR v. Cheung Hok Cheung
Read the full judgment text of DCCC 895/2017 on BabelCite. This District Court judgment was delivered on 31 January 2018.
1. Cheung Hok Cheung you have pleaded guilty to one charge of possession of 1.12 grammes of a mixture containing 0.84 grammes of heroin, contrary to section 8 of the Dangerous Drugs Ordinance [1] (charge 1) and one charge of trafficking in 9.79 grammes of a mixture containing 7.88 grammes of heroin, contrary to section 4 of the Dangerous Drugs Ordinance (charge 2).
Cites 5 cases
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DCCC 895/2017 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 895 OF 2017 ____________
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REASONS FOR SENTENCE 1.Cheung Hok Cheung you have pleaded guilty to one charge of possession of 1.12 grammes of a mixture containing 0.84 grammes of heroin, contrary to section 8 of the Dangerous Drugs Ordinance[1](charge 1) and one charge of trafficking in 9.79 grammes of a mixture containing 7.88 grammes of heroin, contrary to section 4 of the Dangerous Drugs Ordinance (charge 2). 2.In summary at around 10:19 a.m. on 2 July last year the police found you acting suspiciously outside the Yuen Long Jockey Club Health Centre. The police intercepted you and on search found in your right front pocket of your shorts a total of eight packets containing 0.84 grammes of heroin. Under caution you admitted the heroin was for your own consumption. 3.Three days later on 5 July the police again found you acting nervously outside the Health Centre. The police intercepted you and found in a plastic bag you were carrying a total of sixty-two packets containing 7.10 grammes of heroin and in the left pocket of your shorts found seven packets containing 0.78 grammes of heroin. The police also found $504.40; two wallets; one handbag; three notebooks and two mobile phones. Mitigation 4.In passing sentence, I have carefully considered everything said on your behalf by Mr Yeung, including that you are now 71 years of age. Possession of heroin 5.In HKSAR v Mok Cho Tik[2]the Court of Appeal said the starting point for possession of drugs which a bona fide user normally has in his possession should be in the range of 12 to 18 months but this does not seek to exclude magistrates from imposing lesser terms for very small quantities where the circumstances so warrant. Taking into account the quantity of drugs was 0.84 gramme which cannot be described as very small and that you are a persistent offender having twelve convictions for possession of drugs, I am satisfied a starting point of 12 months’ imprisonment is appropriate. Latent risk 6.Taking into account the drugs were divided into eight separate packets and that you were unemployed at the time, albeit in receipt of CSSA, there was a clear latent risk the drugs could have fallen into other hands. In the circumstances I increase the starting point by 3 months to 15 months’ imprisonment. 7.Giving you full credit for your plea of guilty reduces the sentence to 10 months’ imprisonment. Trafficking in a dangerous drug 8.In R v Lau Tak Ming[3]the Court of Appeal laid down guidelines for trafficking in heroin. The court said that the sentence upon conviction after trial where the quantity of narcotic is up to 10 grammes is between 2 and 5 years’ imprisonment. I am satisfied that the appropriate starting point after trial for 7.88 grammes of heroin is 4 years and 4 months’ imprisonment. Own use 9.Under caution and in a video recorded interview you told the police the heroin was for your own consumption; you had been addicted to drugs for more than 30 years and that you usually consumed heroin twice a day. Mr Yeung says that ten packets were for your own consumption. 10.Your criminal record shows you have a long history of drug addiction. In the circumstances I am prepared to accept that ten packets may have been for your own consumption. 11.In deciding how much weight should be attached to the fact some of the heroin may have been for your own use I have considered the decision in HKSAR v Wong Suet Hau[4], in particular paragraphs 33 and 34 as applied in HKSAR v Chow Chun Sang[5]. I have also considered HKSAR v Chu Po Kun submitted by Mr Yeung[6]. 12.In Wong Suet Hau the Court of Appeal said that in most cases the difference will be slight[7]. From the decided cases a discount of between 10-25% from the basic starting point has been held appropriate where a significant portion of the drugs were for own consumption. 13.Dividing each packet equally would result in a narcotic content of between 0.10 and 0.12 gramme in each packet. Ten packets therefore would be approximately 1.2 gramme of heroin. In the circumstances I am satisfied this is not a significant portion for own consumption. 14.Taking into account the quantity of heroin; the packaging; the drugs were found on the street; possession of drugs carries a sentence in any event and the latent risk factor, I am satisfied the starting point should be reduced by 4 months to one of 4 years’ imprisonment, which is equivalent to a discount of just less than 8%from the basic starting point. 15.Although you have two previous convictions for trafficking they are twelve years apart, one in 2003 and one in 2015. In the circumstances I do not enhance the sentence by reason of these convictions. 16.Giving you full credit for your plea of guilty reduces the sentence to 2 years and 8 months’ imprisonment. Totality 17.The two offences being committed on different days, consecutive sentences are appropriate. I am satisfied that a total sentence of 3 years’ imprisonment is appropriate. 18.You are convicted and sentenced as follows:
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Cases cited in this judgment