HKSAR v. Cheng Kai Wah

HCCC 193/2019

[2019] HKCFI 2788

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 193 OF 2019

-----------------

-----------------

---------------------------------

Transcript of the Audio Recording
of the Sentence in the above Case

---------------------------------

COURT:

The defendant has pleaded guilty to one charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He has admitted unlawfully trafficking in 13.18 grammes of a crystalline solid containing 10.36 grammes of methamphetamine hydrochloride, 4.18 grammes of a solid containing 2.24 grammes of cocaine, 33.08 grammes of a solid containing 21.67 grammes of ketamine and 6.99 grammes of herbal cannabis. This plea was entered before Eastern Magistracy on 10 June 2019 and the defendant was committed to the Court of First Instance for sentence.

The Facts of This Case

This was a stop-and-search case where on 7 August 2018, at about 2:30 in the morning, uniformed officers in the Yau Tsim area saw the defendant acting suspiciously. When he saw several uniformed officers, he put his mobile phone to his ear, put his left hand into his trousers pocket and then walked onto the road. As officers felt he was acting suspiciously, they asked him to return to the pavement. He was then searched and some methamphetamine hydrochloride, commonly known as ‘Ice’, contained in four transparent resealable plastic bags were found in his left trouser pocket. In the bag he was carrying, the police found the cocaine, the ketamine, the herbal cannabis and some more ‘Ice’.

He was arrested and cautioned. Under caution, he claimed that all of the drugs were for his own consumption. The police also found two mobile phones and $12,577 in cash.

A house search of the defendant’s home in Lam Tin turned up nothing suspicious and when he was later interviewed in a video-recorded interview, he exercised his right of silence and did not answer any questions relating to those dangerous drugs found on him.

The estimated street value of all the drugs found on him was approximately HK$30,000.

When he pleaded guilty, he admitted that he possessed the drugs for the purposes of unlawful trafficking. In mitigation, I have heard from defence counsel. Mr Iu has said all he can say on behalf of the defendant.

Defendant was born in Hong Kong and is now 50 years old. He is married and lived with his wife and her father before his arrest. He received primary education here in Hong Kong. When he was arrested, he was unemployed but he had previously worked as a construction site worker and then a waiter. He was in need of living expenses to support his family and was tempted by the offer of $3,000 to deliver drugs.

He is not a man with a clear record but none of his previous convictions relate to dangerous drugs. He has a theft and assault conviction dating back to 1980 when he was a juvenile and then two gambling convictions resulting in fines in February 2018.

Trafficking in dangerous drugs is a serious offence. On conviction on indictment, a person is liable to a fine of HK$5 million and to life imprisonment.

The sentencing guideline for ‘Ice’ is found in the authority of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 and the starting point for trafficking in up to 10 grammes of ‘Ice’ is 3 to 7 years’ imprisonment. Therefore the starting point for trafficking in 10.36 grammes of ‘Ice’ in this case, mathematically, is 7 years’ imprisonment.

The sentencing guideline for cocaine is found in the authority of R v Lau Tak Ming [1990] 2 HKLR 370. In the Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69, the Court of Appeal held that the sentencing guidelines in Lau Tak Ming which are directed at trafficking heroin are equally to be applied in cases of cocaine trafficking. The starting point for trafficking up to 10 grammes of cocaine is 2 years to 5 years’ imprisonment. Therefore the starting point for trafficking in 2.24 grammes of cocaine in this case, mathematically speaking, is 2 years and 8 months’ imprisonment.

The sentencing guideline for trafficking in ketamine is found in the authority of the Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1. The Court of Appeal held that where between 10 to 50 grammes of ketamine is trafficked, the starting point will be between 4 to 6 years. Therefore the starting point for trafficking in 21.67 grammes of ketamine in this case, mathematically speaking, is 4 years and 7 months’ imprisonment.

I have referred myself to the authority of the Attorney General v Tuen Shui Ming [1995] 2 HKCLR 129 and HKSAR v Chan Shu Tong [1996] 4 HKC 515 for guidelines in sentencing those that traffic cannabis. Those decisions deal with cannabis resin and it has been observed that cannabis resin has an average concentration four times higher than the average found in herbal cannabis. If one were to traffic under 2,000 grammes of cannabis resin, one would expect a starting point of up to 14 months’ imprisonment. Here the herbal cannabis is of a small quantity, 6.99 grammes, and would attract a low sentence. Therefore I consider it de minimis compared to the other three drugs.

There are three types of drugs for unlawful trafficking in this case that I will take into account: ‘Ice’, cocaine and ketamine, a cocktail of drugs. There are two approaches to sentencing in this situation, namely, the individual approach or the combined approach. It will be sensible to take the combined approach here where the total quantity of drugs will be converted into the quantity of either the most serious or the most prevalent of the three drugs. Often, the combined approach produces the more realistic sentence and I refer myself to HKSAR v Leung Chun Pong [2009] 6 HKC 672 and HKSAR v Wong Kin Kau [2010] 4 HKC 443.

The methodology of this combined approach is to first calculate the applicable sentence for the more serious drug and then make an upward adjustment to take into account the significant quantities of the other drugs. I have been referred to several authorities: HKSAR v Ko Ka Hing [2009] 4 HKLRD 856 and HKSAR v Chan Yuk Leong CACC 318/2013. In that last authority, the Court of Appeal there also held that the court should take the most serious drug and adjust it upwards for other drugs. The court there discussed three means of cross-checking whether the sentence was manifestly excessive. The first test was the absurdity test, the second test was the conversion test and the third test was the ratio test.

I have considered the starting points for the ‘Ice’, cocaine and ketamine in this case. If they were to be dealt with separately, ‘Ice’ is the more serious and more potent of the three drugs. If the individual approach was taken, the individual sentences or starting point for the three types of drugs added together would make a total of 14 years and 3 months. That would far exceed the criminality of the defendant’s crime.

The combined approach is the fairest and appropriate approach here as ‘Ice’ is the more serious drug in terms of potency and attracts the highest starting point of all the drugs. Here it makes sense that I take ‘Ice’ as the base for sentencing. If I were to convert the cocaine and ketamine into ‘Ice’, it would be equivalent to 14.3 grammes of ‘Ice’. Therefore the total amount of narcotics to be treated as ‘Ice’ would be 14.32 grammes which would attract a starting point of 7 years and 3 months.

Defendant, please stand up. The defendant has pleaded guilty at the earliest opportunity and is therefore entitled to a full discount. When that discount is applied to the starting point of 7 years and 3 months, it is reduced to 4 years and 10 months. Therefore the defendant is sentenced to 4 years and 10 months for this charge. Do you understand that sentence?

ACCUSED: Understand.