HKSAR v. Cheung Kin Fun

DCCC 775/2018

[2019] HKDC 683

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 775 OF 2018

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to one charge of “trafficking in a dangerous drug”.

Facts of the case

2.At around 1840 hours on 11 June 2018, the defendant was intercepted outside Exit B of MTR Kwai Hing Station.

3.Upon search, PC8831 found a piece of tissue paper, wrapping a large transparent re-sealable bag, containing 25 small transparent re-sealable bags, containing 4.87 grammes of a solid containing 2.68 grammes of cocaine, inside the right rear pocket of the defendant’s blue shorts.

4.Upon further search, PC8831 also found a large transparent re-sealable bag, containing 30 small transparent re-sealable bags, containing 6.03 grammes of a solid containing 3.35 grammes of cocaine, inside the defendant’s black shoulder bag.  The defendant was also found to be in possession of two mobile phones and cash of HK$3,692.5.

5.The estimated street value of the drugs was about HK$7,621.92.

Mitigation

6.The defendant, aged 27, single, was a railway worker and lived with his mother before his remand.  He had 4 previous records involving 5 charges, one of which was “possession of pipe/equipment fit and intended for smoking/injecting/inhaling dangerous drug” and one was “possession of dangerous drugs”.

7.In mitigation, Mr Sadhwani told the court that the defendant developed the habit of taking drugs since 2015, as reflected from his criminal records.  It is submitted that while part of the drugs concerned were for trafficking, a significant part, namely 3.35 grammes of the cocaine, were for the defendant’s self-consumption.  A urine test result in which the defendant was tested positive for cocaine was submitted in support of this assertion.

8.Lastly, mitigating letters written by the defendant and his mother were submitted.  They all ask this court for leniency.

Sentence

9.It has been stressed time and again that drug trafficking is a serious crime.  Drug traffickers, even young ones, would most certainly be punished by a long-term imprisonment.

10.The Court of Appeal has laid down clear sentencing guidelines for trafficking in cocaine[1].  Where the quantity of cocaine is up to 10 grammes, a term of imprisonment between 2 and 5 years is called for.

11.In the instant case, the narcotic involved is 6.03 grammes of cocaine.  For this quantity, I consider a starting point of 3 years and 9 months’ imprisonment to be appropriate.

12.I have carefully considered the assertion that part of the drugs in question were for the defendant’s self-consumption.  I bear in mind that there is the risk of abuse in this avenue of mitigation, and the primary task of the sentencing court is to determine where the truth lies in a claim of self-consumption on a proper factual and evidential basis[2].

13.I have also reminded myself of the decisions of the Court of Appeal in HKSAR v Wong Suet Hau[3] and HKSAR v Chow Chun Sang[4].  Where all or a significant proportion of the drugs were intended for self-consumption, the ensuing discount to sentence should fall somewhere between 10% and 25% of the starting point.

14.In this case, 2 separate batches of cocaine were found on the defendant.  The one containing 3.35 grammes of cocaine was found inside the defendant’s black shoulder bag.  There is no evidence to rebut the assertion that this part of the drugs was intended for self-consumption.  Coupled with the undisputed fact that the defendant was a drug addict, as reflected from his previous records, and that he was tested positive for cocaine shortly after his arrest, I find that the defendant’s claim cannot safely be ruled out.

15.Under the circumstances, I have to accept that a significant proportion of the drugs were for the defendant’s self-consumption.  For this I am prepared to reduce the starting point by 9 months to 3 years.

16.The defendant indicated on plea day that he would plead guilty to the charge, and is therefore entitled to a full one-third discount on his sentence.  The sentence is thus reduced to 2 years.

17.There being no other mitigating factors, the defendant is sentenced to 2 years’ imprisonment.