HKSAR v. Hong Ming Cheung

HCCC 133/2023

[2023] HKCFI 2039

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 133 OF 2023

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BETWEEN

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to one count of trafficking in 11.75g of methamphetamine hydrochloride contrary to S4(1)  (a)  and (3)  of the Dangerous Drugs Ordiance, Cap 134, on 18 May 2023, before the Eastern Magistrates’ Court.

2.In the early hours of 15 May 2022, the police stopped and searched the defendant at which time they recovered 4 re-sealable plastic bags of suspected dangerous drugs held in his hand and a further 5 re-sealable plastic bags from the waistband of his trousers.  The total narcotic content of the drugs recovered was 11.75 g of ICE.  The defendant was arrested and cautioned.  He maintained the drugs were for his own consumption.  In his VRI he said he had been consuming ICE for 2-3 years at the rate of 1 g per day every 2-3 hours but that this amount of ICE would be 2 weeks consumption.  He had purchased this amount because it was cheaper to do so.

3.The street value of the drugs recovered is in fact estimated to be HK$8,010.

4.The defendant is 32 years of age and single.  He was educated up to Form 5.  He lives with his father and had been a warehouse store keeper on a salary of HK$21-22,000 per month.  In his antecedent statement he maintained he was a member of the 14K and a drug addict.  He has a significant criminal record going back to 2006 when he would have been 15.  His first conviction for possession was in 2008 and for trafficking in 2011, for which he received 5 years’ imprisonment.  He has other matters known up to October 2021, when he received a sentence of imprisonment of 8 months.  This offence was committed in May 2022 and was shortly after his release.

5.The defendant submitted that part of the drugs recovered were for his own consumption and availed himself of the opportunity to make that good by giving evidence within a Newton hearing.  He suggested that he had purchased the goods that night from the Golden Shopping Centre along with his friend and they each purchased half of what he had on him when stopped and searched.  He and his friend paid HK$2,500 each for the drugs.  He did not explain why he was carrying all of the drugs when stopped but he did say that the 4 packets he had in his hand belonged to his friend.  The 5 packets which were found in his waistband were for his own consumption or for supplying to friends at cost price.  He believed 2 of the 5 would be consumed by him but then said that he was on his way to a girlfriend in a hotel and would consume the drugs with her at no cost to her.  He suggested he usually purchased 7 g of ICE per week for his own consumption but he could nevertheless hold down his job as a warehouseman without any detrimental effect.  I do not accept that the defendant consumed 1 g of ICE per day but he would have consumed a small amount of what he had on him which he suggested was for his own use and supply to others, which, on his evidence was about 5.5 g to supply or consume.

6.The relevant sentencing guideline for the offence of trafficking in ICE is HKSAR v Tam Yi Chun [2014] 3 HKLRD 691.  For trafficking in between 10 g to 70 g of ICE the sentencing range is between 7-11 years.  For trafficking in 11.75 g of ICE, I consider an appropriate starting point after trial in all the circumstances of this case to be 7 years imprisonment.  There is also the aggravating factor of the defendant’s bad character and his re-offending shortly after his release for which I intend to enhance his sentence by 3 months making 7 years 3 months in total.  As for his self-consumption, given his evidence, I take the view that there would have been minimal personal consumption that evening but I am prepared to deduct 3 months for that self-consumption reducing the sentence to 7 years.

7.Nothing else has been said which, at this stage, could warrant a more lenient course than would otherwise be the case and so the sentence which I pass, after a full one third discount for the defendant’s plea at the earliest opportunity, is one of 4 years 8 months imprisonment.

8.Forfeiture - Order in terms.

Mr Isaac Guan, SPP (Ag.), on behalf of the Department of Justice, for the HKSAR

Mr Michael Leung, instructed by Messrs T.C. Wong & Co., assigned by the Director of Legal Aid, for the defendant