HKSAR v. Cheung Shing Hang Steve

HCCC 72/2019

[2019] HKCFI 2084

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 72 OF 2019

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

The defendant pleaded guilty to one charge of trafficking in a dangerous drug contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

The defendant was intercepted by police and upon search of his trousers pocket revealed a transparent resealable plastic bag wrapped by transparent plastic wrap which in turn contained two resealable plastic bags of drugs. Upon caution, the defendant claimed that he bought the ‘Ice’ for his own consumption. Upon analysis, it was found that the drugs were 109.8 grammes of a crystalline solid containing 104.8 grammes of methamphetamine hydrochloride. The retail price of the drugs at the time was around HK$76,201.

The defendant is now aged 30. He has eight previous convictions, none related to dangerous drugs. Back in 2011, for dealing with goods to which Dutiable Commodities Ordinance apply, he was sentenced to a total of 6 months’ imprisonment, plus another 4 months for breach of a previous suspended sentence. His last discharge from prison was on 8th May 2012.

By way of mitigation, I was urged to take into account that he had a stable job prior to his arrest and made regular contributions to his mother and wife. He had promptly admitted to possession of the ‘Ice’ and indeed pleaded guilty to the charge of trafficking at the earliest available instance. Counsel submitted that a significant amount of drugs in this case was for the defendant’s consumption and, in fact, counsel ventured to suggest that the ‘Ice’ in question could feed his addiction for one to two months.

Counsel referred this court to his urine test report. The sample was gathered on the day of his arrest which showed that his urine sample was amphetamine positive.

In sentencing the defendant, I have taken into account his plea, the nature of the drugs, the relevant sentencing tariff and mitigation forwarded by counsel. I have also exceptionally referred and perused his handwritten mitigation letter which was only submitted to the court before the court convenes this morning. The narcotics in the present case is 104.8 grammes of ‘Ice’ which falls within 70 to 300 grammes, 11 to 15 years sentencing tariff as stipulated in the case of Tam Yi Chun.

I consider an appropriate starting point should be 138 months. As to the allegation that a certain portion of the drugs is for his own consumption, I have referred myself to the case of Tam Ling Yuen and Wong Suet Hau. I have considered the factors which I am required to consider as laid down in the case of Wong Suet Hau as follows. The quantity and value of the drugs here is 104.8 grammes with retail value of over HK$76,000. And they were contained in two separate packets of roughly or nearly the same weight. The defendant was in possession of the drugs in the morning in Tuen Mun whilst his reported address with his mother is in Chai Wan.

Although no paraphernalia associated with the drugs for trafficking was found with the drugs or at his residence, there is no paraphernalia associated with consumption of the drugs found at his residence.

Although upon his arrest the defendant claimed all the ‘Ice’ was for his self-consumption and that his urine test revealed amphetamine positive, unlike most long-term drug abusers this defendant has no previous record relating to dangerous drugs at all. Whilst counsel told me that he purchased the drugs in question for HK$37,000, it is noted that his alleged monthly salary was only $15,000 which is less than half of what he claimed to have paid for the drugs. And it was also submitted on his behalf that he used to contribute two-third of his monthly salary to his wife and mother. So if he paid $37,000 for the drugs, that would have taken up his seven months savings.

Further, as I have indicated, in these proceedings I have grave doubt as to his allegation of his marital status because in the antecedents statement which was signed by him it was clearly written down that he was single.

It is worth noting that in the case of Wong Suet Hau it is said specifically that the above factors could be determined without a Newton inquiry and only where it was accepted that a significant proportion of the drugs were for the defendant’s own consumption that the court should adjust the sentence to reflect the fact that not all the drugs were for trafficking.

The sentencing courts are required to look with great care at the surrounding circumstances in order to decide whether or not to accept a contention. The Court of Appeal in the case of Tam Ling Yuen, CACC 159/2015. It is noted that in Wong Suet Hau the factual situation was that there was no readily discernible quantity which the applicant possessed for the purpose of self-consumption. The prerequisite remains, for a sentencing court to find, on the available evidence, that a significant proportion of the drugs were for the defendant’s own consumption. What then is a significant amount? From the case of Tam Ling Yuen it can be seen to be half. As found by the trial judge in Tsang Chun Keung at least more than half or two-third in the case of Cheuk Kin Man.

I need to stress what was said by Vice President Lunn in the case of Tam Ling Yuen, quote:

“We have no hesitation whatsoever in rejecting Mr Fenton’s suggestion that the requirement clearly articulated in the reserve judgment of this court in Wong Suet Hau, that a discount of sentence was to be afforded only where the court accepted that a significant proportion of the drugs in which the defendant trafficked unlawfully was for self-consumption had been abandoned or jettisoned.”

The fact that there were two separate packets of drugs each of similar weight does not automatically entitle the defendant to a discount from a starting point by claiming self-consumption. As I have indicated, it is not unusual for drug traffickers to feed their own addiction by consuming a small amount of what they were trafficking. Taking into account the factors which I have referred to above, I reject his claim of self-consumption of any significant proportion of the drugs in question.

I see nothing in this case which would warrant any further discount from the one-third for his plea and his remorse is subsumed into this one-third. So from the starting point of 138 months with a one-third discount he goes to prison for 7 years and 8 months.