HKSAR v. Fung Cheung Kit

DCCC 990/2022

[2023] HKDC 1135

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 990 OF 2022

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to a charge of trafficking in dangerous drugs.

Summary of facts

2.At about 2324 hours on 20 June 2022, the police intercepted D and demanded D to get off the Vehicle.

3.Upon car search, the following items were found: -

(a)  A can of coke (E1)  containing the following: -

(i)  55 plastic bags containing 10g of a solid containing 8.54g of cocaine (E2);

(ii)  4 plastic bags containing 1.31g of a crystalline solid containing 1.13g of ketamine (E3); and

(iii)  1 plastic bag containing 0.29g of a crystalline solid containing 0.29g of methamphetamine hydrochloride (E4).

(b)  A digital scale (E5);

(c)  Cash of HK$12,900; and

(d)  3 mobile phones belonging to D.

4.Under caution, D stated that he possessed E2-4 for self-consumption.

5.In the video recorded interview, the D stated the following: -

(a)  He was the registered owner of the Vehicle;

(b)  He could not recall where he went before his arrest;

(c)  He had knowledge that E2-4 were cocaine, ketamine and ‘ice’;

(d)  E2-4 were for his self-consumption;

(e)  He could not recall when, where and who he bought E2-4 from;

(f)  He bought E2-4 for around HK$10,000 in cash;

(g)  E2-4 were packed in such a way for his convenience in taking them;

(h)  The digital scale (E5)  was used for preventing himself to consume excessive dangerous drugs; and

(i)  The cash of HK$12,900 in his possession was his salary from his construction work.

6.The estimated street values of E2-4 were HK$7,139, HK$614 and HK$167 respectively. A total of $7,920.

Criminal record

7.The D has 7 court appearances between 2002 to 2022 with 10 criminal convictions. None of them are related to drugs offence.

Mitigation

8.The D is now 46 years old, divorced with 2 teenage children.

9.The D in his own mitigation letter explained to this court why he committed the present offence. It was due to his family problems and he met some undesirable friends who introduced him to take drugs. He is very concerned of the well-being of his 2 young children and felt sorry that his ex-wife has to take up job to support them.

10.Since his arrest for the present offence, he has been in remand. He has been informed that his unit will be re-possessed by the Housing Department.

Sentence

11.There are 3 types of dangerous drugs in the present case.

(a)  The narcotic content of the cocaine was 8.54g. According to The Queen v Lau Tak Ming [1990] 2 HKLRD 370 sentencing guideline; the sentence is 4 years 6 months’ imprisonment.

(b)  As to 1.13 grammes of ketamine, the sentence is 2 years. (SJ v Hii Siew Cheng [2009] 1 HKLRD 1)

(c)  As to 0.29 grammes of ‘ice’, the sentence is 3 years. (HKSAR v Tam Yi Chun [2014] 3 HKLRD 691)

12.Since the individual approach will result in a harsh sentence, the defence agreed that the combine approach should be opted for sentencing.

13.Among the 3 different drugs, ‘ice’ has a very small portion. The defence relied on the case of HKSAR v Lui Cheung Chi CACC 76/2020 that quantity of ‘ice’ should be ignored in order to achieve a fair calculation of sentence.

14.Further, the defence said that the urine test indicated that there was a positive finding of ‘ice’ in the report. There was a possibility that the ‘ice’ was for his own used.

15.Both parties agreed on the calculations of the 3 tests based on the quantity of cocaine: -

(a)  The absurdity Test: 78.35 months

(b)  The conversion Test: 58.56 months

(c)  The ratio Test: 57.32 months

16.As such, I take 4 years 6 months as the starting point, I adjusted the sentence upward for 4 months to take into account of the quantity of ketamine.

17.As said in HKSAR v Wan Lau Mei CACC 389/2013 that where the D is trafficking in a variety of drugs that is to be regarded as an aggravating factor because in such a situation the trafficker is able to cater to a far wider market than in only one kind of drug. (paragraph 40 refers)

18.I enhance the starting point by 2 months. It arrives at 5 years. I reduced the sentence to 3 years 4 months after 1/3 discount.

19.I now come to deal with the mitigating of self-consumption.

20.As stated in the HKSAR v Cheung Wai Man [2019] 1 HKLRD 817 that: -

“In determining the issue of self-consumption, the sentencing court must first find that a “significant proportion” of the drugs were to be consumed by the defendant. ... based on credible and reliable information and material.” (para 49)

21.The defence said that at least the only one packet of ‘ice’ was for the D’s consumption as he was tested positive of ‘ice’ in his urine test.

22.However, the urine test did not show ketamine positive.

23.The defence was not able to tell how much of the 55 packets of cocaine were for his own consumption.

24.In the same judgement of Cheung Wai Man (paragraph 54), the court further said that: -

“We would stress that it is fundamental that a claim of self-consumption needs to be established to the sentencing court’s satisfaction. There is a real danger of abuse in this avenue of mitigation, hence a sentencing court must have a proper factual and evidential basis in accepting the contention that a “significant proportion” of the drugs were for the defendant’s own consumption. Mere assertions from the bar table, unless agreed or not in dispute or contention, will generally not suffice.”

25.The defence informed me that the D will not give evidence in his claim of self-consumption. As stated in the case of Wong Suet Hau, there is no need to hold a Newton hearing to determine the issue of self-consumption.

26.In the case of Wong Suet Hau [2002] 1 HKLRD 69, there are  a number of factors for the court to decide whether the claim is made out (see para 79G).

(a)  The quantity of the drugs in the present case included cocaine, ketamine and ice. The defence accepted that the focus should be on the drugs of cocaine as he was tested positive of cocaine. One has to bear in mind that with 55 packets of cocaine in small bags, they are ready for distribution and for sell.

(b)  As to the 4 packets of ketamine, it is commonly used with other drugs to prolong its effect.

(c)  The value of the total drugs: -

(i)  According to the D, he spent $10,000 to buy the whole lot of drugs.

(ii)  At the same time, he accepted what the summary of facts said that the street value was about $8,000.

(iii)  As a drug addict, surely he knew the street value of it and why would he pay 20% more than the street value?

(d)  The D was intercepted by the police when he was “acting furtively at the driver seats”. Upon a car search, the can of coke was found under the driver seat. The private car was parked next to the hawker stalls in Sham Shui Po. That was a street market area when all the stalls were closed for business at the material time. (I refer to the photos provided by the prosecution). No one would go there to buy things at about 11:30 pm. The street was totally quiet while the D lived in a housing unit in Tuen Mun.

(e)  It was not in dispute that there were 5 mobile phones seized during the arrest, 2 were from his person. 3 from the storage compartment in front of the passenger seat. The D admitted that one of the 3 belonged to him.

(f)  All the 5 mobile phones had sim cards. The question to ask why did he need 3 phones in the middle of night in an area where all the stalls were closed?

(g)  The D claimed that the electronic scale was used by him to prevent himself from overdose, but no item for drugs consumption was found.

(h)  The D became drug addict since 2020 to 2021 because of his broken marriage. However, he was divorced in 2017.

(i)  The D bought the second-hand Benz in early 2021, it was a C-Class model for the purpose of transportation to the construction site. It simply makes no sense to buy a private car instead of a van which can carry more passengers and construction tools in it.

(j)  The second-hand Benz cost him $16,000 to made the purchase. That was almost all his savings. Since then he was unable to save any money.

(k)  He used to work as reinforcement fixing worker with a monthly earning of about $50,000. The 55 packets of cocaine can last for 7 to 10 days. It costs him $10,000. He claimed he worked 20 days a month. When he took drugs on that day, he did not work.

(l)  He contributed $10,000 to his 2 teenage children. That means he spent about $40,000 per month on his own bearing in mind his rent to the government was only $1,000.

(m)  His last contribution to the children was in May 2022, he did not make any contribution in June 2022 when he was arrested on 22 June 2022. When he said that his children are so important to him, why he did not pay them maintenance in June but to spend $10,000 in buying drugs?

27.Taking all the matters into consideration, I refused the claim / assertion by the D that any portion of the cocaine were for self-consumption. He is therefore not entitled to any further discount.

28.The D is ordered to serve a sentence of 3 years 4 months’ imprisonment.