HKSAR v. Cheung Chi Fai

DCCC 1093/2021

[2022] HKDC 1432

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1093 OF 2021

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to two charges of trafficking of dangerous drugs.

SUMMARY OF FACTS

2.On 1 April, 2021, the police acting on information ambushed outside a hotel room in TST.  At about 12:45 pm, the police intercepted the defendant when he left the room.

Charge 1

3.The following drugs were found in his trouser pocket:-

(a) One re-sealable plastic bag containing 0.58g of a solid containing 0.57g of ice; and

(b) One plastic bag containing 2 pellets containing a total of 0.25g of a mixture containing 0.18 g of heroin.

4.Under caution, the defendant said that “he was offering goods to sell to others to earn money.”

Charge 2

5.In the hotel room, further items were found on the table:-

(a) One plastic bag containing 3 plastic bags containing a total of 1.24 kg of wet solid containing traces of ice;

(b) one electronic scale;

(c) a plastic bag containing a large number of re-sealable plastic bags;

(d) a box of surgical gloves.

6.Under caution, the defendant said that “the drugs were sold to others to earn money”.

7.In a record of interview, the defendant said that:-

(a) Two weeks ago, a female friend Tao Lai asked him to pack 1.75 g of ice into small packets for trafficking for a remuneration of $500 per day.

(b) At the time of the arrest, he was on the way to deliver the ice to a man across the street.

(c) He knew that one type of drugs was ice and the other one was heroin.

(d) He checked in the hotel together with Tao Lai.

8.The estimate street value of ice was about $320 and $7,483 for heroin.

Criminal record

9.The defendant has 17 previous convictions, 6 of them were possession of dangerous drugs, none of his past convictions related to the present offences.

10.His last conviction record was 11 years ago.

Mitigation/Personal Background

11.The defendant is now 49 years old, divorced in 2012.  He received education up to Form 2.

12.The Defendant was unemployed and received social security assistance and disability allowance of $5,100 per month.

13.In 1989, the defendant was assaulted by a group of people outside Tuen Mun Magistrate Court, resulting the left side of his body to be paralyzed.  He is currently on wheel chair as his health condition has deteriorated since his remand for the present case. 

Sentence

14.In the present case, the 2 types of drugs were ice and heroin.

15.The sentencing guideline for heroin can be found in R v Lau Tak Ming [1990] 2 HKLR 370, for trafficking of heroin up to 10 grammes falls into the sentencing bracket of 2 to 5 years’ imprisonment.

16.As to trafficking of ice, according to AG v Ching Kwok Hung [1991] 2 HKLRD 125, up to 10 grammes is 3 to 7 years.

17.In sentencing, the defence accepted that the combine approach is more appropriate than the individual approach.

18.In the case of HKSAR v Wan Lau Mei CACC 389/2013 that the appellant also faced two charges of trafficking in dangerous drugs, the court said that the drugs in both charges: -

“representing one occasion of possession of the total amount of drugs and impose sentences on both offences for that total, making the sentences concurrent with one another. Separate sentences still have to be imposed …… an appropriate sentence for this total quantity of drugs is then imposed for both offences with the sentence for the second offence made concurrent with the sentence for the first offence.”

19.According to the judgement of HKSAR v Islam S M Majharul CACC 67/2019, there are 7 steps to determine the proper sentence for mixed/cocktail drugs in trafficking. (paragraph 27 refers)

20.The starting point for charge one as to:-

(a) 0.18 g of heroin is 2 years 1 month

(b) 0.57 g of ice is 3 years 3 months

21.As Ice is more potent than heroin, Ice is used as the base for calculation of the three different tests:-

Type of test	Starting point
Absurdity test	3 years 4 months
Conversion test	3 years 4 months
Ratio test	3 years 1 month

22.I consider that the appropriate starting point for charge 1 is 3 years and 3 months.

23.I adjust the starting point upward for another 3 months to take into account of the quantity of heroin.  The sentence for charge one arrives at 3 years 6 months.

24.As this batch of drugs involved 2 types, clearly, it calls for enhancement of sentence, as said in many appeal cases that “because in such situation the trafficker is able to cater to a far wider market than the trafficker in only one kind of drug.”

25.I consider that 3 months’ enhancement to the starting point is appropriate.  The total sentence of Charge 1 is now arrives at 3 years 9 months.

26.As to the narcotic content in charge 2 is 5.63 g of heroin with traces of ice, I considered that the traces of ice has no significant bearing in the sentence.  The appropriate starting point is 3 years 8 months.

27.That arrives at a total sentence for:-

(a) Charge 1: 3 years 9 months

(b) Charge 2: 3 years 8 months

28.Now, I come to decide the range of discount of sentence.  The defence asked this court to consider to grant the defendant a 1/3 discount.  The defence is fully aware that this is not a timely plea, trial date has been fixed and the defence informed this court of the change of plea on 11 October 2022.  According to the case of HKSAR v Ngo Van Nam CACC 418/2014, at paragraph 214, that the defendant is only entitled to 25% discount.

29.The defence also asked this court to exercise discretion to reduce the sentence on the ground of the defendant’s health condition as he is now in wheel chair.  I consider that this is not a mitigating factor for reduction of sentence as it will only encourage people behind the scene to engage people in poor health to take part in trafficking in dangerous drugs.  When they are arrested and brought before the court, they will expect leniency from the court to reduce sentence on the ground of health issue.

30.The final sentence of each charge after 25% is as follow:-

(a) 33.75 months (2 years 9 months and 22 days);

(b) 33 months (2 years and 9 months).

31.I order both sentences to run concurrently.  The defendant is ordered to serve a sentence of 2 years 9 months and 22 days.