HKSAR v. Cheang Ka Long

DCCC 134/2019

[2019] HKDC 1453

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 134 OF 2019

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Reasons for Sentence

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Charge

1.The Defendant pleads guilty to a charge of trafficking in a dangerous drug. 

Facts

2.At about 00:20 a.m. on 18 November 2018, SCO 90102 (“PW1”) intercepted the Defendant, who had passed through the immigration counter, near the escalator at the Customs Departure Hall, Hong Kong-Macau Ferry Terminal, Sheung Wan, Hong Kong. The Defendant was led to the customs clearance room for inspection, and the ionscan test conducted on his personal belongings indicated a positive result for cocaine.

3.The Defendant was then brought to Room M266 for a body search. Upon search by CO 13124 (“PW2”), the Defendant was found to be wearing two underpants. Two pieces of tissues wrapping a candy packet containing a transparent resealable plastic bag with a suspected dangerous drug (“Exhibit 1”) therein were found inside the Defendant’s inner underpants.

4.The Defendant was immediately arrested. Under caution, the Defendant admitted that Exhibit 1 was cocaine, and he owned Exhibit 1 for his own consumption.

5.A ferry ticket (from Hong Kong to Macau with the departure time scheduled at 2:30 a.m. that day), a mobile phone and two SIM cards were seized from the Defendant.

6.Exhibit 1 was subsequently examined by the Government Chemist, who confirmed that it was 1 plastic bag containing 24.1 grammes of a solid containing 9.51 grammes of cocaine.

7.At the time of the offence, the estimated street value of the cocaine involved in this case was HK$28,751.3.

8.At all material times, the Defendant was in possession of the aforesaid dangerous drug for the purpose of unlawful trafficking.

Mitigation

9.The Defendant was 17 years of age at the time of the offence.  He is now 18, of a clear record.  

10.It is advanced in mitigation that he possessed part of the drug seized for his own consumption.  His reply after arrest and caution at scene was that he had the drug for his own consumption.  The prosecution’s stance is that it could not have been any significant part because 2 days after his arrest and detention a cocaine test conducted on him revealed negative results.  This suggests that even if he was a cocaine abuser, his dosage would not be large.  His counsel asks me to consider 10% off from the starting point to reflect this.  I agree that it is a fair way to put it.  

Sentencing considerations

11.The sentencing guidelines for trafficking in up to 10 grammes of cocaine indicate up to 5 years’ imprisonment (Attorney General v Rojas [1994] 1 HKC 342; R v Lau Tak Ming [1990] 2 HKLR 370). 

12.In HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, the Court of Appeal suggests a 10 – 25% discount from the basic starting point as warranted by the circumstances of the case, where all or part of the drugs seized were for own consumption. 

Sentencing the Defendant

13.Based on the drug quantity, I consider 4 years 8 months (ie 56 months) as the starting point.  I take 2 months off for the Defendant’s marginally young age (though he was not too young).  From 4 years 6 months (ie 54 months), I adjust the starting point downward by about 10% to the extent of his own consumption.  The actual starting point is 4 years (ie 48 months).  There is a one-third discount for the plea of guilty, the sentence is 2 years 8 months (ie 32 months).