HKSAR v. Cheung Ho Hang

DCCC 651/2018

[2019] HKDC 1082

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 651 OF 2018

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REASONS FOR SENTENCE

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INTRODUCTION

1.The defendant is convicted after trial of the offence of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance.  The dangerous drug involved was 31.8 grammes of cocaine.

FACTS

2.At about 10 pm on 2 May 2018, PC 19218 (“PW1”) saw a taxi with registration number JK7101 (the “Taxi”) near Pitt Street in Portland Street, Yau Ma Tei turning left to Portland Street from Waterloo Road.  Afterwards, the Taxi stopped outside Nos 43-45 Portland Street, with hazard flasher on.  For two to three minutes no one was getting on or off the Taxi.  PW1 then approached the Taxi slowly.  Inside the Taxi were the driver (“PW2”) and the defendant.  The defendant was the only passenger in the Taxi and was sitting on the left rear passenger seat, without any actions of getting the change from PW2.

3.PW1 tried to open a door of the Taxi but it was locked.  He knocked the window of the Taxi and PW2 unlocked the door.  Having opened the door next to the right rear passenger seat, PW1 showed the defendant and PW2 his police warrant, and demanded a search. PC 10356 (“PW3”) assisted PW1 in leading the defendant out of the Taxi from the left rear passenger seat.

4.When the defendant was getting off the Taxi, PW1 saw the defendant put his right hand into his front right shorts pocket and took out two white items which he dropped on the left rear passenger seat of the Taxi.  PW1 searched the Taxi and seized the aforesaid two white items.  Upon inspection, PW1 found that the aforesaid two white items were white solid contained in two transparent resealable plastic bags with red line, each wrapped with a piece of white tissue paper.

5.Upon body search on the defendant, PW3 found that the defendant had a mobile phone, a wallet containing HK$150, a Hong Kong passport and a key.  

6.PW2 did not know the defendant and had not seen him before 2 May 2018.  PW2 had received an order on 2 May 2018 to pick up the defendant from a bus stop in Siu Hong Court, Tuen Mun.  When PW2 picked up the defendant at 9:34 pm, the defendant asked to go to Mong Kok District.  During the ride, the defendant had asked PW2 to change the destination to Inn Hotel in Yau Ma Tei.  When PW2 arrived at Inn Hotel outside Nos 43-45 Portland Street, the defendant did not get off the Taxi.

7.The fare for the taxi ride to take the defendant from Siu Hong Court in Tuen Mun to Inn Hotel in Yau Ma Tei was HK$213.10.  After the body search on the defendant had been conducted, the defendant paid HK$150 he had on him to PW2 to settle the taxi fare.  PW2 waived the outstanding balance of HK$63.10.  After having paid HK$150 to PW2, the defendant had no money left.

8.Government Chemist examined the aforesaid two white items and found that they contained a total of 38.0 grammes of a solid containing 31.8 grammes of cocaine.

9.The defendant alleged that he was in possession of the subject cocaine for his own consumption. I found beyond all reasonable doubt that the defendant was in possession of the subject cocaine for the purpose of passing it on to others as a courier or a seller in return for a reward, hence he was unlawfully trafficking the subject cocaine at the material time.

ANTECEDENT

10.Prior to the commission of the present offence, the defendant had a clear record.

11.He was born in December 1994 and is now 24 years old.  He received education up to Form 3 level.

MITIGATION

12.Mr Khosa reminded me that the defendant had a clear record prior to the commission of the present offence.

13.A number of mitigation letters were submitted to this court asking for leniency.  As submitted by Mr Khosa, those letters say that the defendant is a good person with an addiction, but they do not add much to the fact that the defendant had a clear record.

14.Mr Khosa also submitted that a significant proportion of the subject cocaine was for the defendant’s own consumption.  The prosecution did not contest such allegation.  

SENTENCE

15.I bear in mind the sentencing guidelines for trafficking in cocaine laid down in R v Lau Tak Ming and Ors [1990] 2 HKLR 370 and Attorney General v Rojas [1994] 1 HKC 342.

16.In the present case, 31.8 grammes of cocaine were involved.  I will adopt a starting point of 6½ years’ imprisonment.[1]

17.The defendant had a clear record. In this connection, the Court of Appeal in HKSAR v Law Num-chun[2] was of the view that where the accused was convicted of drug trafficking, age and good character were generally irrelevant.  As such, the defendant’s clear record does not constitute a valid mitigating factor in this case.

18.Regarding self-consumption, I bear in mind the Court of Appeal’s decision in HKSAR v Liu Ming Sze[3]. Taking into account that possession carries a sentence in any event and the latent risk factor, I will reduce the sentence by 8 months to 70 months’ imprisonment.

19.I further reduce the sentence by 4 months as the whole of the prosecution case was agreed by way of sections 65B and 65C of Cap. 221 so that no prosecution witness was required to testify.

20.There being no further valid mitigation justifying further reduction in sentence, I sentence the defendant to 66 months’ imprisonment.