HKSAR v. Cheung Yiu Chung and Others
Read the full judgment text of DCCC 803/2022 on BabelCite. This District Court judgment was delivered on 28 March 2023.
1. D1, D2 and D3 faced an amended charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, namely on 21 April 2022 unlawfully trafficked in dangerous drugs, namely 13.29 grammes of a solid containing 12.69 grammes of cocaine and 4.82 grammes of a solid containing 4.12 grammes of ketamine.
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DCCC 803/2022 [2023] HKDC 432 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 803 OF 2022 ________________________
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________________________ REASONS FOR SENTENCE ________________________ Introduction 1.D1, D2 and D3 faced an amended charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, namely on 21 April 2022 unlawfully trafficked in dangerous drugs, namely 13.29 grammes of a solid containing 12.69 grammes of cocaine and 4.82 grammes of a solid containing 4.12 grammes of ketamine. 2.All of them pleaded guilty and admitted to the Amended Summary of Facts prepared by the Prosecution. I convicted them accordingly. Summary of Facts 3.The summary of facts in short was that on 21 April 2022 at around 1110 hours, D1 and D2 were seen by police walking from No. 516 Shanghai Street heading Soy Street and acting furtively by turning around. They were intercepted and found: 4.On the right hand of D1: (1) inside a piece of tissue paper, 2 transparent resealable plastic bags containing a total of 0.71g of solid containing 0.67 g of cocaine (E1); 5.On D2, (2) cash $5,268 inside D2’s wallet; (3) cash $21,870 inside D2’s jacket pocket. 6.D1 and D2 were arrested for trafficking in dangerous drugs and brought back to Mong Kok Police Station. Upon thorough body search on D2, police seized:
7.D2 was further arrested for trafficking in dangerous drugs in Mong Kok Police Station. 8.Under caution, D1 and D2 both admitted their knowledge of E1 to E4. D1 stated that he knew trafficking in dangerous drugs was wrong. He felt sorry and begged or a chance. D2 stated that she felt sorry and would not get involved in dealing with dangerous drugs in future. 9.D3 was incriminated by D1 and D2 as the person who supplied the cocaine and ketamine to them outside a dental clinic at Tai Tsun Street, Tai Kok Tsui. D3 was arrested at 1817 hours on the same day for trafficking in dangerous drugs. Under caution, D3 admitted that she wanted to make more money so she helped others to deliver dangerous drugs. 10.In the video-recorded interview, D1 admitted under caution that he was instructed to collect the dangerous drugs from D3. D2 was accompanying him. The dangerous drugs were kept in a white bag (“White Bag”) and was passed to him by D3. D1 knew that the White Bag contained dangerous drugs. There were 3 resealable bags which contained various packets of cocaine and ketamine with different packaging and around HK$16,000 cash. The White Bag was then passed to D2 and D2 kept it under her bra. D1 received instructions from other persons for drug trafficking activities via a WhatsApp group (“WhatsApp Group”). D1 and D2 had been to Tsim Sha Tsui, Cheung Sha Wan, Mong Kok, Sham Shui Po for delivery of cocaine. At the time of arrest, D1 and D2 were going to deliver cocaine to an unknown person near Langham Place at Shanghai Street. 11.D2 admitted under caution in the video-recorded interview that she knew that D1 was instructed to collect the dangerous drugs from D3 and accompanied D1. D3 passed the White Bag to D1. D2 knew that the White Bag contained dangerous drugs. Inside the White Bag, there were 3 resealable bags which contained various packets of cocaine with different packaging and HK$15,500 cash as informed by a member in the WhatsApp group. She received instruction from other persons for drug trafficking activities via the WhatsApp Group. D1 and D2 had been to Tsim Sha Tsui, Cheung Sha Wan Wholesale Fish Market, Langham Place, Ap Liu Street for delivery of cocaine by taxi. At the time of arrest, D1 and D2 were going to deliver cocaine to an unknown person near Langham Place at Shanghai Street. 12.In the video-recorded interview, D3 confirmed her admission made in the Dental Clinic that she trafficked in dangerous drugs to make a living and to make money for shopping. 13.CCTV footages of the dental clinic captured that D3 put some banknotes and something in white colour into the White Bag and passed the White Bag to D1 at around 0919 hours. 14.Upon examination of the mobile phones of D1 and D2, messages from other persons stating the quantities and price of drugs, locations and phone number of the purchasers were found in the WhatsApp Group. 15.Government Chemist confirmed the narcotic contents of E1 to E4. Street value of the cocaine was HK$11,535.20 and that of the ketamine was HK$1,858 at the time of arrest. Mitigation (D1) Personal background (D1) 16.D1 was aged 15 when he committed the current offence. D1 is now 16 years old. He is single and born in Hong Kong. His parents were divorced a few months before he was born. He has been living with his mother and his elder brother in a public housing estate since birth. 17.He has not seen his father since he was in primary 2. His father telephoned him occasionally thereafter. He has not been in contact with his father for the past 7 years. His mother is 40 years old and was unemployed until recently when she started working at a local cafe. As his mother was on CSSA at the material time, she was unable to give D1 more than $50 a day for his pocket money. His relationship with his elder brother, who is currently at college, is only fair. 18.He has finished education up to secondary 2 in Hong Kong and was attending an IVE hairdressing course at the time of his arrest. He was unemployed. His health is in good health and is not a drug addict. 19.He is of clear record when he committed the present offence. Mitigation (D1) 20.D1 indicated his intention to plead guilty to the charge at the first available opportunity, i.e. when the case was brought up for mention on 17 November 2022. He was fully cooperative with the police by providing information to the police leading to the arrest of D3. He was willing to be a prosecution witness to testify against D3 in the event that D3 contested the charge at trial. It is submitted by his counsel that he is truly remorseful for his wrongdoings and is determined to turn over a new leaf. During his remand since 21 April 2022, he has learnt a bitter lesson. He is determined not to break the law for the rest of his life. He begs for leniency. 21.A mitigation letter written by D1 dated 6 March 2023 was submitted to the court. D1 stated that he has reflected deeply upon himself. He understands that he was foolish and naive in committing the offence. He was under the influence of his peers and committed the offence out of greed. He is determined to break the contact with his peers. He felt regret to trouble his family members to visit him. He asked the court’s leniency and hoped to repay his family and continue his education after his release. 22.D1’s mother and elder brother fully supported his rehabilitation. They wrote mitigation letters to the court respectively. His mother was shocked and saddened after she heard about D1’s offence. She said that D1 has already reflected upon himself. He promised to break the links with his peers and start anew after release. She supports his rehabilitation and undertakes to supervise D1 more stringently. D1’s elder brother mentioned in his letter that D1 is an introvert person and does not know how to express himself. D1 has chosen a wrong method to earn money. His elder brother said that he would reach out more for D1 and accompany D1 in the future to understand his situation and emotion in order to avoid the present offence being repeated. He would also assist D1’s learning after he is released. 23.D1’s rehabilitation plan was further assisted by Ms Wong, his social worker. A letter from Ms Wong was received. She mentioned that D1 has faced the situation proactively and is willing to bear the legal consequences. He concerns as values his personal development and behavior. He is willing to accept the arrangement and learning opportunity offered by Correctional Services Department. He looks forward to learning more about law-abiding concepts and disciplines in a suitable and structured learning environment, so that the knowledge could be applied in his future. Ms Wong said that D1 has already reviewed gravely of his previous behavior, ways of making friends, values and behaviors. D1 hoped to get himself back to a right path after release. Ms Wong considered that D1 is young and ignorant and should be given an opportunity to turn a new leaf. Submissions (D1) 24.It was submitted by his counsel that a full one third discount shall be offered to him. Further leniency shall be afforded for his assistance provided to the police. 25.Counsel for D1 agreed that the respective starting points of 12.69g of cocaine and 4.12g of ketamine are 62 months and 13 days’ imprisonment and 32 months’ imprisonment. It was submitted that as D1 trafficked a cocktail of drugs, the sentencing approach is at the court’s sole discretion. There is no dispute that trafficking in a variety of dangerous drugs is as aggravating factor. It was submitted on D1’s behalf that although he was 15 years old at the time of committing the offence, he acknowledges that his young age is not a mitigating factor and the standard sentencing guidelines are applicable. D1 also acknowledges that his committing the offence in concert with D2 is another aggravating factor. Mitigation (D2) Personal background (D2) 26.At the time of the offence, D2 was 15 years old. She is now aged 16 and was born in Hong Kong. Prior to this incident, she was a full time student studying in form 4. She lived with her parents and younger sister aged 9. 27.She has a clear record in Hong Kong and has been in jail custody since her arrest. Her health is generally good. She is not addicted to drug. Mitigation (D2) 28.In D2’s mitigation letter, she expressed that she is remorseful and regrets that she made her family members worried about her. Her grandfather is seriously ill at the material time. Her mother has to commute between visiting her and her grandfather. She felt apologetic to her mother. D2 said that her parents worked in the Mainland when she was small. She was raised by her grandmother. She was not keen on study. Since she attended secondary school, she has become rebellious and mingled with peers who got her into contact with drugs and illegal activities. She became agitated and argumentative with family members. Their relationships became tense. Until the present offence, she has reflected upon herself and regretted that she had not treasured the time spending with her family. She missed her family particularly her sick grandfather. She stated that she will study hard and retake DSE examination after her release. She will prepare herself better to contribute to the society. Meanwhile, she asks for the court’s leniency. 29.D2’s grandmother (“Grandmother”) submitted a mitigation letter for D2. She said that she took care of D2 since she was small. However, she did not know how to encourage D2 and teach her patiently. Gradually, D2 did not tell Grandmother her unhappy experience in daily life or in school. Although D2 is not strong academically, she has participated actively in school activities and was willing to help teachers in school. She is a simple minded, cheerful and outgoing girl in nature. However, she went astray after being mingle with bad peers. Grandmother said that D2 committed the present offence due to misjudgment and negative influence from friends. D2 has reviewed what she did, followed the instructions from the staff in the jail and learnt to start anew diligently. Grandmother asks for the court to be lenient and to give D2 a chance. 30.D2’s parents also wrote a mitigation letter. They said that they have been working in Mainland and ignored the emotional need of D2. They ask for the court’s leniency and promise to accompany D2 and show her their concerns. 31.D2’s social worker (“Social Worker”) submitted a letter in support of D2’s mitigation. She stated that D2 was proactive and cooperative. She lacked of the love and care from her parents since she was small. She was taken care by her grandmother. However, her grandmother is of advanced age. They had difficulties in communicating with each other. D2 did not have strong sense of belongings to her home and was therefore susceptible to the negative influence from friends. During the discussion with Social Worker, D2 had for multiple times admitted to her wrongdoings and reflected seriously upon herself. She stated that she would cut the ties with her peers and continue her studies to start anew. It is believed that D2 committed the present offence out of momentarily recklessness. D2 is receptive to Social Worker’s guidance. Her parents now come back to Hong Kong to take care of and supervise D2. Social Worker feels that D2 is willing to reflect upon herself and to improve herself. She asks the Court to be lenient in sentencing D2. Submissions (D2) 32.It was submitted on D2’s behalf that the strongest mitigating factor is her guilty plea. It was also urged that the court may consider her age, role and cooperation and/or assistance. 33.Counsel for D2 referred to HKSAR v Yeung Hong Fu [2017] HKEC 1388 and HKSAR v Lam Hon-cheung [2016] HKEC 769 and urged the court to consider other forms of punishment such as an order for detention in a training centre for D2. 34.D2 also relied on her young age in mitigation should an imprisonment be imposed. It is submitted that D2 was only 15 years at the time of the offence. She was immature, weak-willed and lacked insight to the harsh consequences of such crimes. Her age allowed her to be easily exploited by others to traffick in dangerous drugs. HKSAR v Ho Ho-yin [2020] HKCFI 474 (a further discount of 11 months), HKSAR v Chow King-po [2018] HKDC 944 (approximately 9 months from starting point were reduced) and HKSAR v LUO Xuejian (6 months were reduced from starting point) were relied. D2 submitted that D2 was acting under the instructions of others and was used by others as a pawn/carrier to traffick in dangerous drugs. 35.D2 also relied on HKSAR v Sahail Kumar [2021] HKCFI 2426 and submitted that D3 was incriminated by D2. In Kumar, a 40% discount was accorded. Mitigation (D3) Personal background (D3) 36.D3 is 27 years old. She was born in Hong Kong and is single. She is of clear record. She was educated up to secondary six, and worked as a full time dentist’s assistant, earning HK$13,000 per month at the time of arrest. She is in good health and is not a drug-addict. 37.Her father, aged 54, who is unemployed due to his ill-health. He requires dialysis for 10 hours daily. Her mother, aged 53, works part-time so that she can look after the father, earning around $6,000 per month. D3 has a younger brother, aged 21, a student working part-time, earning around $3,000 per month. 38.D3 has been working in McDonald, working for clerical work, in the restaurant business respectively since she was 15 years old to alleviate the financial burden of the family. She contributes HK$5,000 to her family. It was submitted on her behalf that she is a filial daughter and is described positively by her employers. A mitigation letter was prepared by her employers which mentioned that D3 is responsible, willing to learn, has good working attitude and good relationship with colleagues. She is simple-minded and easily influenced by others. Her employers said that D3 has heavy financial burden from her family. They are shocked by the present offence and felt hard to believe what had happened. They ask the court to give D3 a chance to renew herself and take care of her parents after release. Mitigation (D3) 39.It was submitted that D3 expresses remorse and begs the court for leniency. She acknowledges that her behaviors were wrong and take full responsibility for her conduct. She fully cooperated with the police and admitted to the offence under caution. She has saved the Court considerable time and costs by pleading guilty to the charge. 40.D3 submitted a mitigation letter. She mentioned that she was the breadwinner of the family. Her mother could only work part-time to supplement the family expenses. Out of momentary greed and influence from her peers, she committed the present offence to earn more money for the family. She was deeply remorseful during the detention and fully understood that she was foolish in earning money by illegal means. She was visited and supported by her parents and touched by their love and support. She asked for the court’s leniency. She planned to study further and find a better job to support the family after her release. She promised to abide the law and distance herself from the bad influence of her peers. Submissions (D3) 41.It is submitted that based on the reasoning in HKSAR v Cheung Wai Man [2019] 1 HKLRD 691, D3 invites the Court to take a combined approach and to adopt a starting point of under five years and two months (equivalent to 62 months). 42.Counsel for D3 asks the court to call for a background report to gain fuller insight into D3 and her family’s circumstances, which is submitted that may be of relevance and assistance, when sentencing her. I have raised this point with counsel for D3. It appears to me that no particular areas I could further explore given full submissions were made by her counsel. Discussion Starting point 43.The present case involved trafficking two dangerous drugs, consisting of 12.69 g of cocaine and 4.12 g of ketamine. 44.According to R v Lau Tak Ming [1990] 2 HKLRD 370 and AG v Pedro Nel Rojas [1994] 1 HKC 342, the guideline starting point for trafficking in cocaine, on conviction, after trial for quantity between 10g and 50g, is 5 to 8 years’ imprisonment. On an arithmetically approach, the starting point for 12.69 g of cocaine is 62.42 months (5 years + (2.69 g X 0.9 months)). I round it up to 62 months. 75% of the total drugs seized is cocaine (12.69g / (12.69g + 4.12g)). 45.Following SJ v Hii Siew Cheng [2009] 1 HKLRD 1, the guideline starting point for trafficking ketamine, on conviction after trial, for quantity over 1 to 10 g, is 2 to 4 years’ imprisonment. By calculation, the starting point for 4.12 g of ketamine is 32.33 months (2 years + (3.12 g X 2.67 months)). I round it up to 32 months. 25% of the total drugs seized is ketamine (4.12g / (12.69g +4.12g)). 46.I have considered the approach stated in Cheung Wai Man and HKSAR v Islam Majharul [2020] 3 HKLRD 146, CACC67/2019 for the calculation and analysis below. When an individual approach is adopted, I should add the respective stating points of cocaine with ketamine, i.e. 62 months plus 32 months and the sum is 94 months. 47.When a combined approach was adopted, I shall:
48.In the present case, cocaine is the more serious drug in terms of potency. The quantity of cocaine is higher than ketamine. Cocaine is the base drug. 49.According to absurdity test, assuming all the drug seized was cocaine, the quantity is 16.81g. The relative starting point is 66.13 months (5 years + (6.81g X 0.9 months)). 50.When conversion test is applied, I first use cocaine as the basis for calculation. The starting point for trafficking 12.69 g of cocaine is 62 months, while that for trafficking 4.12 g ketamine is 32 months. I need to calculate the quantity of cocaine which is accorded a starting point of 32 months. In my calculation, when trafficking 2.24g of cocaine, the starting point is 32 months (2 years + (2.24 g X 3.6 months)). Hence, it could be considered that the total quantity of cocaine is 14.93g (12.69g + 2.24g). The starting point for trafficking 14.93g of cocaine is 64.4 months (60 months + (4.93g X 0.9 months). 51.When ketamine is used as the basis for calculation in a conversion test, I need to calculate the quantity of ketamine which represents a starting point of 62 months. In my calculation, when trafficking 33.4 g of ketamine, the starting point is 62 months (48months + (23.4g X 0.6 months)). Therefore, it could be considered that the total quantity of ketamine is 37.52g (4.12g + 33.4g). The starting point for trafficking 37.52g of ketamine is 64.51 months (48months + (27.52g X0.6 months)). 52.According to ratio test, the total quantities of drug are 16.81g, consisting of 12.69 g (i.e. 75%) cocaine and 4.12g (i.e. 25%) of ketamine. 16.81g of cocaine is 66.13 months (5 years+ 6.81g X 0.9 months). 75% of 66.13months is 49.6 months. 16.81g of ketamine is 52.09 months (4 years + (6.81g X 0.6 months)). 25% of 16.81g of ketamine is 13.02 months. The total number of months is 62.62 months. 53.From the above, the sentence under individual approach is 94 months. It is far exceeding the result in absurdity test and could not be the appropriate sentence. The result in absurdity test i.e. 66.13 months would be the upper limit of the starting point before enhancing for aggravating factors. The sentence under ratio test i.e. 62.62 months would not be the appropriate sentence either, because it only reflects the starting point of cocaine in the present case. I am of the view that the calculation from conversion test, i.e. 64 months after being rounded up is the appropriate starting point before it is enhanced to reflect the aggravating factor that the trafficking involved two or more serious dangerous drugs. 54.Apart from the aggravating factor that the present case involved two different types of dangerous drugs, I also consider that the trafficking was committed by more than 1 person. I enhance a total of 3 months for these two reasons. The starting point before giving any discount for mitigation is 67 months. Discussions (D1 and D2) 55.D1 and D2 are in more similar situations. I shall discuss their sentences together without disregarding the differences of their backgrounds and circumstances. I have also reminded myself to consider their cases separately and favorably when any mitigating factors could be applicable to either or both of them. Alternative option 56.First, I shall deal with whether an alternative sentencing option should be offered to D1 and D2. I have considered section 109A of Criminal Procedure Ordinance, Cap 221 and cases relied by D2. However, in my judgment, I considered that the present offence is far more serious than the cases relied by D2. In Yeung Hong Fu, though it is also a case of trafficking a cocktail of drugs, the drug in substantial portion was ketamine which is less serious than cocaine in the present offence. In Lam Hon-cheung, only one single type of drug i.e. ketamine was involved. Though the quantity is not small, ketamine is comparatively less serious than the base drug, i.e. cocaine in the present case. Furthermore, the facts of both cases did not transpire an organized trafficking activity involving various people in the present case. Young age 57.Secondly, D1 and D2 are of young age. It was acknowledged by D1 that young age is not a mitigation factor, while D2 submitted otherwise. 58.In HKSAR v Abdallah [2009] 2 HKLRD 437 at page 451, paragraph 32, it was stated by the Court of Appeal that:
59.I have considered the submissions on age and the authorities submitted from counsel for D2. It also appears to me that the social workers for D1 and D2 have both spoken positively of them respectively. They have sincerely reflected upon themselves and showed efforts to improve themselves during detention. 60.However, as clearly indicated by the above authorities, a defendant’s personal circumstances shall account for no weight in mitigation for trafficking of dangerous drugs case. Both D1 and D2 committed the present case at the age of 15. D2 was a bit younger than D1. However, they could not be considered as extremely young. Further, certain degree of sophistication was involved in the present case which increased the criminal culpability of the present case. As to D2 who relied on this ground, she admitted that she was added to the WhatsApp group and took instruction from other persons. She knew that D1 was instructed to collect the dangerous drugs from D3 on that day. The dangerous drugs were hidden under her bra. I have considered the cases relied by D2 but do not consider any reduction due to young age is appropriate in the circumstances. Assistance to police and guilty plea 61.In the summary of facts admitted by the defendants, D3 was incriminated by D1 and D2 as the person who supplied the subject dangerous drugs to them outside the dental clinic. The information led to the arrest of D3 who admitted to her guilt. I am of the view that, apart from the guilty plea, it is the only valid reason for reducing the sentence. 62.It was trite and confirmed by authorities that valuable assistance to the authorities could accord appropriate reduction in sentence. In cases where assistance was provided to authorities without testifying those about whom information was provided against, the usual discount is of 40% (Z v HKSAR (2007) 10 HKCFAR 183 at paragraphs 23 and 24). 63.Given the above analysis, the respective sentences for D1 and D2 are 40% discount from the starting point of 67 months, i.e. 40.2 months. I round it up to 40 months. 64.The detention order of D1 in Rehabilitation Centre under TMCC 1510/2022 shall lapse. Discussion (D3) 65.As I mentioned above, I do not think that a starting point of 62 months is an appropriate one. It could not reflect the trafficking of a cocktail of drugs because the starting point of cocaine in the current case is already 62 months. 66.Counsel for D3 in her oral submissions stated that D3 should not be considered acting in concert with D1/D2 in the present case. I do not accept her submissions. D3 is charged jointly with D1 and D2. Further, the present incident involves more than one person. D3 played a part, though not an instructing one, in the whole transaction. In her cautioned statement, she admitted she helped others to deliver dangerous drugs. In my view, the starting point mentioned above, namely 67 months is an appropriate one. 67.D3’s personal circumstances are hardly a mitigation factor. Her family financial problems could not constitute any valid grounds for reduction in sentence. 68.She admitted to her guilt and pleaded guilty, considerable time and costs are saved. I accord her full one-third discount, making a sentence of 44 months’ imprisonment after rounding up the decimal place and I so order. 69.In conclusion, the length of imprisonments for D1 is 40 months, D2 is 40 months and D3 is 44 months.
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