HKSAR v. Cheung Tin Man

HCCC 247/2019

[2019] HKCFI 2818

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 247 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 had pleaded guilty before a magistrate to two charges of trafficking in dangerous drugs and was committed to the Court of First Instance for sentence.

In sentencing, I have considered the whole circumstances of the case, including its nature and facts, in particular the type and quantity of the dangerous drugs involved, background of the defendant and mitigation put forward on his behalf.

The facts of the case may be summarised as follows:

The defendant was stopped at the ground floor lobby of a building. Upon search, four plastic bags each containing other bags containing dangerous drugs were found on the defendant. The dangerous drugs were 3.93 grammes of a solid containing 2.73 grammes of cocaine and 17.22 grammes of a solid containing 14.9 grammes of ketamine.

Upon arrest, the defendant said under caution that the crack cocaine was for his own consumption.

The defendant was then taken to his home upstairs and there a search was conducted.

The following dangerous drugs were found: 1,151.50 grammes of a crystalline solid containing 1,034.20 grammes of methamphetamine hydrochloride, 202.90 grammes of a solid containing 176.20 grammes of ketamine, 94.30 grammes of a solid containing 67 grammes of ketamine and 1.57 grammes of methamphetamine, 11.18 grammes of a mixture containing 9.05 grammes of heroin hydrochloride and 9.26 grammes of a solid containing 6.22 grammes of cocaine.

Also found were bundles of resealable plastic bags, a sealing machine and an electronic balance containing traces of methamphetamine hydrochloride.

Under caution, the defendant said the dangerous drugs were all his.

I was told that the defendant is 60 years of age. He had received education up to Primary 6 and had been working as a casual bus driver, earning about 10,000 to 12,000 a month. He is divorced and has an adult son whom he had not contacted for years. He was living alone.

He had been convicted on five occasions before for offences including a robbery, a smuggling offence and a driving offence, etc. This is the first time he committed a dangerous drugs-related offence. He has been suffering from stomach ulcer and gastrointestinal bleeding. He had been taking “Ice” since 2004.

Learned counsel for the defence, Ms Ng, urged the court to take into account that the defendant had pleaded guilty at the earliest opportunity and that he is now remorseful. She also stressed that this is the first conviction in relation to dangerous drug of the defendant. She informed the court that the defendant committed the offence since his income was insufficient to pay for his medical expenses.

In the circumstances of the present case, I see no reason to depart from the tariff for each type of drugs.

Multiple drugs were involved in the case. For Charge 1, the drugs involved were cocaine and ketamine. The more serious drug was cocaine but its quantity was much smaller than that of ketamine. The quantity of ketamine alone attracts a starting point of about 4 years and 2 months.

The Court of Appeal held in AG v Pedro Nel Rojas [1994] 2 HKCLR 69 that, in a case of trafficking in cocaine, guidelines in R v Lau Tak Ming [1990] 2 HKLR 370 is applicable since the narcotic content of the two drugs is very closely alike in the degree of harm.

According to Lau Tak Ming [1990] 2 HKLR 370, 2.73 grammes of cocaine attracts a starting point of around 2 years and 9 months.

According to AG v Hii Siew Cheng [2009] 1 HKLRD 1, 14.9 grammes of ketamine attracts a starting point of around 4 years and 2 months.

For Charge 2, the most prominent drug was “Ice”, both in terms of its seriousness and quantity. Other drugs were mainly ketamine; the others were heroin and cocaine in relatively small quantity. There were 1,034 grammes of “Ice”.

The Court of Appeal held in Tam Yi Chun, CACC 524/2011, that in a case of trafficking in ‘Ice’ where the narcotic content was over 600 grammes, the tariff in Abdallah, CACC 304/2008, is applicable. In Abdallah, it was held that if the narcotic content is between 600 to 1,200 grammes, a sentence of 20 to 23 years’ imprisonment should be considered.

I have to bear in mind the danger of mathematical progression causing injustice. Just by reference to the quantity of “Ice”, a starting point of around 22 years and 2 months is appropriate. For the rest of the drugs, according to Hii Siew Cheng, 243 grammes of ketamine attracts a starting point of around 8 years and 3 months. The total quantity of heroin and cocaine was 15.27 grammes and, according to Lau Tak Ming, a starting point of 5 years and 4 months is appropriate.

In deciding an appropriate starting point for each charge, in the light that multiple drugs were involved, I have had regard to the guidance provided by the Court of Appeal in cases such as HKSAR v Yip Wai Yin [2004] 3 HKC 367, HKSAR v Yau Ka Ming, CACC 144/2013, HKSAR v Chan Yuk Leong, CACC 318/2013, and HKSAR v Cheung Wai Man, CACC 258/2017. I will adopt a combined approach and check whether the starting point to be adopted is fair and appropriate by testing it against the absurdity test, the conversion test and the ratio test.

For Charge 2, I note that if all the drugs are to be treated as “Ice”, the total quantity will attract a starting point of slightly more than 23 years. The drugs involved included drugs which carry lesser sentence than “Ice”.

However, I have to have regard to the two possible aggravating features of a wider market and the effect on users of combination of dangerous drugs.

For Charge 1, two kinds of drugs were involved.

For Charge 2, four kinds of drugs were involved.

In my judgment, this calls for a significant degree of enhancement in the starting point.

For Charge 1, I will adopt a starting point of 4½ years.

For Charge 2, I will adopt a starting point of 23 years.

The defendant pleaded guilty before a magistrate and for this he is entitled to a one-third discount.

Having considered the whole circumstances, including what learned counsel, Ms Ng, mitigated on the defendant’s behalf, I am of the view that one-third is the extent of discount the defendant is entitled to.

In a situation such as the present case, in considering totality, the appropriate practice is to have reference to the total quantity of the two batches of drugs. It is obvious that “Ice” was distinctly the significant drug. Taking into account the whole circumstances of the case, in my judgment, the drugs in Charge 1 bear little significance in the overall sentence.

So, defendant, please stand up.

For the reasons I have said, I sentence you to an imprisonment term of 3 years for Charge 1 and 15 years and 4 months for Charge 2.

Having considered totality, I order the two sentences to run wholly concurrently.

You are to serve a total sentence of 15 years and 4 months for the two charges.