HKSAR v. Cheung Siu Kei

HCCC 337/2017

[2018] HKCFI 499

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 337 OF 2017

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

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COURT:

Mr Cheung, you pleaded guilty to one count of trafficking in 63.2 grammes of cocaine, contrary to Sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, before the Eastern Magistrates’ Court on 11 September 2017.

The Summary of Facts which formed the basis of that plea was read out to you today, and you confirmed them. As such, you are formally convicted before this court on your plea.

On 2 October 2016, you were intercepted in Hang Mei Street, Tsing Yi, and you were searched. Three transparent resealable plastic bags were found in your pocket, they contained 63.2 grammes in total of narcotic content of cocaine.

On arrest and caution, you readily admitted that you were to receive a reward of $1,500 for delivering the cocaine to someone in Hang Mei Street, but that was the extent of your co-operation with the police until you pleaded guilty at committal, because you refused to sign the police officer’s notebook and would not answer any questions about dangerous drugs in interview.

You have an absolute right to silence. But once you have pleaded guilty, it is entirely appropriate for the court to take into account the degree to which you have cooperated, and been full and frank with the police when assessing your credibility of what you now wish the court to consider on your behalf.

Given your acceptance of the Summary of Facts today, it is appropriate for this court to take into account that you admitted that you were trafficking when first apprehended, and you admitted that you were to receive a reward. That is logical, given that you had little income, a family to support, and, according to you, a drug habit.

Mr Bolton, on your behalf, tells the court that you do not accept that you were in Hang Mei Street to traffic, but you were going to find something to eat. Those were your instructions to him, but not what you have confirmed today was the basis of your plea. And I am going to proceed on the basis of your plea and the Summary of Facts as read out.

You are 29 years of age and a resident of Hong Kong. You are educated up to Secondary 3. You are married and have two very young children. Whilst you come from a broken home, your father clearly feels he should take some responsibility for your offending. I think he takes too much upon himself. You are an adult and a married man. This offending and your previous criminal record must be laid at your door and at your door alone. Nevertheless, you are very lucky to continue to have his support.

You have a criminal record which shows a tendency towards violence but not towards drugs. You have been in and out of trouble since your early 20s. This offence was committed whilst on bail for the possession of an offensive weapon, for which you received and served a sentence of six months. I am told that weapon was a retractable baton. There is no connection at all between that offence and this. Whilst you were in employment at the time of this offending, earning approximately $600 a day as a part-time decoration worker, you say that you were in debt. That debt would have been exacerbated by what you say is your drug habit, having consumed one gramme of cocaine per day. Of course, that is not what was said on the antecedent record, which suggests that you told the officer then that you consumed one gramme per month.

I do however note that you did have some cocaine in your system when you were first remanded, but I have no way of knowing how much you actually consumed on a regular basis. It matters not, because the facts show that you had three resealable plastic bags of cocaine on you at the time of your arrest, and given that you admitted the cocaine was for delivery to somebody on Hang Mei Street, and that most users of cocaine would keep their own cocaine at their home address, for use there, and do not carry it around with them in the street; I do not accept that any part of the cocaine which you had on you that night was for your own consumption and I am not going to reduce the amount which I will take into consideration for sentence. In so doing, I do note that you are not willing to take part in a Newton hearing to make good your suggestion.

The sentencing guidelines for trafficking in cocaine can be found in HKSAR v Lau Tak Ming [1990] HKLR 370. For trafficking in between 50 and 200 grammes, the range of sentencing after trial is between 8 and 12 years. For 63.2 grammes, therefore, the starting point after trial would be 8 years 3 months’ imprisonment. I will enhance that figure by 3 months to take into account the fact that you committed this offence whilst on police bail, albeit for an entirely different matter, and you will receive one-third discount for your plea at the earliest opportunity, but I am afraid there is no other mitigation which can affect the sentence which this court must pass, and so you will go to prison for 5 years and 8 months.