HKSAR v. Lee Cheuk Hong

DCCC 1019/2020

[2021] HKDC 957

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1019 OF 2020

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to 2 charges:-

(1)  Charge 1 Possession of dangerous drugs:-

(a)  1.13 grammes of a powder containing 0.95 grammes of ketamine;

(b)  4 cigarettes containing traces of a solid containing cocaine; and

(c)  0.43 gramme of a mixture containing 0.32 gramme of heroin.

(2)  Charge 2, trafficking in dangerous drugs:-

(a)  38.81 grammes of a solid containing 15.66 grammes of cocaine;

(b)  4.41 grammes of a crystalline solid containing 4.35 grammes of methamphetamine hydrochloride.

SUMMARY OF FACTS

2.The defendant was intercepted when he returned to his residence.  During a body search, ketamine was found inside the defendant’s shirt pocket.  Four cigarettes with traces of cocaine were found from his shoulder bag.  Heroin was found inside his flat. 

3.Under caution, the defendant said that those drugs were for his own consumption.

4.During a house search, the drugs in charge 2 were found.  The defendant said under caution that half ounce of the cocaine was for his own consumption and the other half was for selling to the others.

5.In a subsequent video-record interview, the defendant stated that he bought a total of 24 grammes of cocaine for HK$30,000.  He planned to keep half for his own use and sell the other half to others.  The cash found on his body $31,970 was his earnings from half a year ago.  He earned $700 to 800 per day.

6.The estimate market value of the cocaine and ice seized was $74,282 and HK$2,637 respectively.

MITIGATION

7.The defendant is 25 years of age. He has a clear record.  He lived with his parents who run a flower shop in Kowloon.

8.The defendant used to be a construction site worker doing carpentry works and he earned about $15,000 per month.

9.Due to huge gambling debts, the defendant declared bankruptcy in November 2019.  He lost his job and started to take drugs.

10.As to the commission of the present offence, it was purely for financial reason, he was under the bad influence of his undesirable friends to lure him to earn quick money and to take free drugs.  His role was a messenger as he only followed the instructions of others.

11.The defendant has been in remand since the arrest, his family shows support by regular visit to him.  Upon deep reflection on his own misdeed, he hopes to learn a skill to make a living and to turn a new leaf.  Today, he submitted a letter to this court with the similar meaning.  In a nutshell, he is regretful.

SENTENCE

12.When I pass sentence on the defendant, I bear in mind all the mitigating factors before me.  The only meaningful mitigating factor is his guilty plea.

Charge 1

13.As pointed out in the case of HKSAR v Wan Sheung Sum CACC 438/1999, the sentence for simple possession is in a range of 12 to 18 months, subject to enhancement of sentence of the latent risk factor.

14.The defence urged this court not to enhance the sentence as the 3 different types of drugs are of small quantity.

15.In the present case, the defendant himself is a drug addict.  He was unemployed and was a subject of a bankruptcy order in November 2019.  He had no income at the material time.  There were 3 different types of drugs.  In my judgement, there is still a slight latent risk that those drugs would be redistributed to find their way into the wrong hands apart from the defendant.

16.Adopting the 3 steps approach in sentencing the defendant in charge 1:-

(1)  I consider a starting point of 12 months is appropriate.

(2)  As stated before, there is a slight latent risk factor existed in the present case, I enhance the sentence by another 6 months.

(3)  The total sentence is one of 18 months, reduce to 12 months after 1/3 discount.

17.As to Charge 2, I note the calculation from the defence as to the proper sentence in the combine approach.  The result of the absurdity test is one of 7 years and 8 months, while the conversion test is 7 years, ratio test is 6 years and 2 months.

18.To this end, I impose a sentence of 6 years and 2 months for charge 2. It becomes 4 years and 40 days after 1/3 discount.

19.The sentence:-

Charge 1: 12 months

Charge 2: 4 years 40 days

20.I order 4 months in charge 1 to be served consecutively to charge 2. The total sentence is 4 years 5 months and 10 days.