HKSAR v. Cheung Yiu Ting

DCCC 332/2018

[2018] HKDC 1546

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 332 OF 2018

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Reasons for Sentence

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1.The defendant has pleaded to a single charge of trafficking in a dangerous drug, the particulars showing that drug to be methamphetamine hydrochloride, the total being 10.8 grammes of a crystalline solid which appears to have been a hundred per cent as said because the quantity inside that was 10.8 grammes of methamphetamine hydrochloride.

2.The offence came to light as a result of a licence check at a building in Portland Street in Mong Kok.  Police entered the room for investigation and the defendant had been in the room with two other people, one of whom was a female who had left.  The drugs were on a table. When the defendant was arrested, he said, “Ah Sir, I bought the packet of ‘Ice’ for my own consumption and it has got nothing to do with the others.”  The defendant had some $5,000 in cash on him and a mobile phone.

3.The defendant gave a video-recorded interview in which he described how he came to purchase the drugs and retrieved them from a flower bed in Shanghai Street.  He said he paid some $4,000 for the drugs.  He had gone to Room 11 of the premises where he was arrested to see a Mr Tam and he had put the drugs out on the table.

4.As far as his background, he did give some details in his cautioned statement.  He said he earned about $20,000 a month as a renovation worker and would consume about 4,000 worth of the drugs every month.  He consumed the drug twice a day with less than 1 gramme in volume per day.  The drugs are valued at just above $6,000 and the defendant accepts he possessed the drugs for the purpose of trafficking in them.

5.The defendant is now, I believe, 40 years old. He has some previous convictions.  The only relevant ones in this case relate to drug convictions in 1999 and 2001 and he was convicted of possession of dangerous drugs in 1999 and sent to Drug Addiction Treatment Centre in 2001.

6.Under “health condition”, the defendant said he had been consuming dangerous drugs including methamphetamine since 2008.  His criminal record would suggest it is a bit longer as he was sent to a Drug Addiction Treatment Centre for treatment of addiction in 2001.  There may have been a break, but the defendant has no further convictions in relation to drugs.  However, even on his own admission in the antecedents statement he has been regularly consuming drugs for at least 10 years, the last 10 years.  The defendant was found to be positive for amphetamines on two tests in January after he was remanded for this offence.  There seems to be sufficient evidence to conclude the defendant is a drug consumer and a consumer of the drug which he was found with, that is “Ice”.

7.In his mitigation, it appears that the drugs were bought for himself and the Mr Tam who he mentioned and who was found in the room, Room 11, with him, and they were in the process of dividing the drug when the police did the licence check.  The defendant said about a third of the drug, about 3.5 grammes, would be used for his own consumption.  He says he had no financial reward for doing this.  There are no other of the usual indicia of trafficking; the drugs were not split up into smaller quantities, there were no bags or scales or anything like that.  The defendant had an amount of cash which was well within his means and only one mobile phone at the time of his arrest.  However, it is the first time the defendant has mentioned any question of division of the drugs, it certainly does not feature in his record of interview. He says he wished to protect Mr Tam.

8.Turning to the approach to sentencing.  First, of course, it is necessary to determine the starting point for sentence.  There is a guideline sentence for this offence.  Those guidelines have been in place for some time now, relating as far back as Attorney General v Ching Kwok Hung in [1991] 2 HKLR 125.  The accepted guideline is that up to 10 grammes is between 3 to 7 years’ imprisonment, from 10 to 70 grammes is 7 to 11 years’ imprisonment, and the quantity of 10.8 grammes here would put the guideline at the top of the first band or the bottom of the second band.  It should be accepted that the starting point based on the guideline would be of one 7 years’ imprisonment or 84 months.

9.The defendant says that besides his plea of guilty he also seeks to ask for a reduction of that starting point on the basis of the heading described as “self-consumption” of the drug.  The most recent authorities from the Court of Appeal set out the basis on which a deduction for that head could be given and that is that a significant portion of the drug would be consumed by the defendant.  Where that threshold is passed, then a deduction from the starting point for sentence between 10 to 25 per cent can be considered by the court.

10.Besides the matters raised in mitigation, there is other evidence which suggests the defendant would consume the drug himself: firstly there is what he said, which is the drugs were for his own consumption; secondly that he is on the evidence -- of his antecedents evidence and the evidence of previous convictions a long-term consumer of drugs; and thirdly that the defendant certainly had the presence of the drug in his own body at the time he was arrested.  There is nothing exceptional about the way the defendant describes his consumption of the drug and his means by which he would maintain his addiction.

11.The circumstances of the defendant’s arrest are suggestive of the fact there may well have been either a division or a social trafficking of the drug about to take place, and on that basis I am prepared to find as a fact that the threshold for a deduction for self-consumption has been reached by the defendant in this case.  I consider that that deduction should be in the region of 15 per cent, which should be a deduction of around 12 months’ imprisonment of the original starting point, and that would lead the starting point now to be 6 years’ imprisonment or 72 months.  It is on this figure of 72 months that the deduction for the defendant’s plea of guilty will operate.  The defendant appears to have indicated plea from an early stage and so he is entitled to a full one-third discount.  That would lead to a sentence of 4 years’ imprisonment, 48 months’ imprisonment, and that is the sentence I will impose on him.