HKSAR v. Cheng Sen

HCCC 14/2024

[2024] HKCFI 1907

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 14 OF 2024

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to one charge of trafficking in a dangerous drug before Magistrate Mr. Tsang Chung-yiu and was committed to the Court of First Instance for sentence. The defendant had confirmed his plea and admission of facts before me.

2.Particulars of the charge are that the defendant on or about 11 January 2022, on a private car bearing registration mark XP 4222, outside nos.24-28 Ashley Road, Tsim Sha Tsui, unlawfully trafficked in a dangerous drug, namely 428g of a solid containing 379g of cocaine.

SUMMARY OF FACTS

3.The defendant was the driver of XP 4222 when he pulled over outside nos.24-28 Ashley Road at around 8:28pm on the charge date.

4.Police officers conducting anti-narcotic operation in the vicinity saw the defendant leaned towards the passenger seat, and then looked out of the window appearing to be carrying out some activities.  He got out of the vehicle about 2 minutes later.

5.Feeling suspicious, the officers went up to intercept him.

6.Upon search, 23 plastic bags containing the particularized drugs and multiple re-sealable plastic bags were found from the front passenger seat.  There were 2 mobile phones on either side of the steering wheel, one wallet with cash of $12,410 in the middle storage compartment, an electronic scale and some more re-sealable plastic bags in the front passenger storage compartment.

7.The total estimated street value of the cocaine was HK$374,928 (if in powder form)  or $643,284 if in crack form.

8.XP 4222 was a rental vehicle rented by the defendant on 27 November 2021.

9.The defendant was arrested and said under caution that he received orders from his boss to deliver cocaine to West Kowloon for a reward of $5,000.

10.In the subsequent video recorded interview, the defendant said that it was a friend nickname ‘Ah Yin’ who invited him to sell drugs.  The drugs found in the car were collected by the defendant on 10 January from a man in Nam Sang Wai.

11.On the day of his arrest, he received an order to deliver the cocaine to where he was intercepted in Tsim Sha Tsui.  The boss would tell him the details of the customers and the defendant would call them and let them know his car plate number.  The defendant passed the dangerous drugs to the buyers through the car window.  The drugs found in the car were all for distribution.

12.One of the mobile phones seized was used to contact the person who supplied the cocaine, the other was for his own general usage.  He claimed that the cash in the wallet was pocket money from his family.  He rented the car both for his personal use and transportation as well as for the distribution of dangerous drugs.  He was the only user of the vehicle.  The defendant says he is not a drug user.

PREVIOUS CONVICTION

13.The defendant is of previously clear record.

BACKGROUND AND MITIGATION

14.The defendant was born in 1997 and was 4 day shy of 27 on the day of being sentenced.  He was 24 years old at the time of the offence, and living with his parents and younger sister before his arrest.

15.The defendant holds an Associate Degree in Science, majoring in Statistics, from the School of Professional and Continuing Education, obtained in 2019.  He proceeded to become an undergraduate student at the University of Hong Kong in September the same year.  He, however, was not a student at the time of his arrest, and was unemployed.

16.Mr. Lo submits that the defendant mingled with the wrong people and squandered his time playing mahjong, while he should have been focusing on his undergraduate studies, to the extent that he discontinued his university education.  It was those same people who offered money for the defendant to be a courier of dangerous drugs.  He now realizes that he had fallen into a trap set by those people.

17.Mr. Lo submits that the defendant was instructed by older and more sophisticated people in the world of crime, exploiting him while hiding behind the scene, and seeks a ‘merciful’ sentence.

18.This court is told that the defendant has registered to study various courses, hoping to better prepare himself for integration back into society upon his release.

19.The defendant’s parents, school friends, pastor and social worker wrote in mitigation, telling the court about how the defendant is a good natured person, polite and respectful, and had all along been a diligent student, receiving multiple commendations.

20.The parents blame themselves for not being understanding about the defendant’s financial situation and failing to give him proper support, causing him to succumb to the temptation of making fast money from trafficking.

21.The defendant also wrote in mitigation, telling the court about his remorse and that he will try his best to improve himself while in jail, so that he will be able to contribute to society in the future.

SENTENCE

22.The maximum sentence on conviction upon indictment for the offence is that of life imprisonment and a fine of $5 million.

APPLYING HERRY JANE YUSUPH

23.The guidelines and 6-step approach as set out by the Court of Appeal in HKSAR v Herry Jane Yusuph[1]are applied as follows.

Step 1: The applicable guideline tariff bands

24.For 379g of ‘cocaine’, the applicable guideline tariff band is that of 12 to 15 years’ imprisonment.

Step 2: The defendant’s role and culpability

25.The defendant was engaged in the distribution of drugs to the buyers, a direct trafficker.  His culpability is higher than that of a simple courier.

Step 3: The relevant band within the guidelines

26.An arithmetical approach towards the guidelines would lead to a notional starting point of 14 years and 8 months’ imprisonment.  Based on my finding of the defendant’s role and slightly enhanced culpability, I would increase the starting point by 4 months, taking it to 15 years.

Step 4: Aggravating factors

27.Based on the summary of facts, there is no evidence that there are any aggravating factors in the defendant’s commission of the offence.

Step 5: Mitigating factors

28.Mr. Lo mentions that the defendant was a young person being exploited.

29.Yet, the defendant was 24 years old when he decided to accept the monetary reward to help others to traffic in dangerous drugs.  He was definitely not of extreme young age.  As such, in cases as serious as in the present one, his age is not a mitigating factor.

30.Furthermore, the defendant had been commended a few times for his academic achievement between 2010 and 2015.  At the time of the offence, the defendant was holder of an Associate Degree.  The defendant is obviously a clever person and not some naïve 16 year old in contact with the world for the first time when he decided to commit the offence to earn some ‘quick money’, to help repay his $100,000 mahjong debt.

31.The defendant has no one but himself to blame for his present situation, and he will bear the full consequences of his action.

32.I find that the only mitigating factor is the defendant’s timely guilty plea.

Step 6: Totality

33.Mr. Lo had referred to HKSAR v Camara Kandja [2021] HKCFI 3825; HCCC 171/2020, as well as HKSAR v Chan Ho Kwai [2021] HKCFI 2938, 8 September 2021 in support of his submission that this court should follow the approach to Step 6 of Herry Jane Yusuph in those cases, and grant the defendant an overall reduction in the sentence on the basis that it will have a crushing effect on the defendant, or that it will be a more merciful sentence.

34.For the following reason, this is not an option open to this court.

35.In the case of HKSAR v Lee Ming Ho [2024] HKCA 150; CACC 130/2019, the Court of Appeal provided further guidance on the application of the Herry Jane Yusuph guidelines.

36.In relation to Step 6 on totality, the Court clarified as follows:

“85. It will be seen that the Court in Herry Jane Yusuph was not advocating some form of unprincipled, final reduction whenever a sentencing judge feels the sentence might be an overbearing or crushing one for the defendant concerned: it was warning of the danger of adding up the sentences for multiple counts or multiple aggravating factors leading to an inflated overall starting point out of proportion to the defendant’s criminality. The context of Step 6 was ‘totality’, where more than one count is involved, or more than one aggravating feature is engaged. Many sentences of far shorter length may be considered overbearing or crushing for certain defendants, but that is not a reason to reduce a sentence otherwise dictated by the sentencing guidelines. If that were the case, it would promote inconsistency and unnecessary and unhelpful comparisons between sentences by defendants and appellants in drug trafficking cases. As observed by Doyle CJ in the Supreme Court of South Australia decision in R v E, AD80:

“Care must be taken in using the concept of a crushing sentence. Not uncommonly, for particularly serious crimes, a sentence that is crushing in its effect must be imposed. The use of that term does not imply that when a very heavy sentence is called for, it is appropriate for the court to reduce it simply because to the offender the sentence may be crushing. At the end of the day if that is what is called for, that is the sentence that must be imposed.”

86. As we have noted, the flawed approach in Cheng Man Kit[2] has been applied in a number of other sentencing decisions, and followed by other judges at first instance. We must state clearly that the sentencing gloss in Cheng Man Kit in construing Step 6 of Herry Jane Yusuph is not correct and should not be followed. This extends to the other cases that have taken the same approach.

37.The Court in Lee Ming Ho was informed that Cheng Man Kit was the last in a line of 10 cases at first instance, in which the same interpretation of Step 6 of Herry Jane Yusuph had been adopted.

38.The 2 cases relied on by Mr. Lo have been specifically identified in Lee Ming Ho as among the Court of First Instance cases that had applied this ‘flawed approach’ and should not be followed[3].

39.After I drew Mr. Lo’s attention to the above on the day of sentence, he, very fairly, withdrew this ground of mitigation.

40.With this clarification of Step 6 in mind, despite the fact that the notional starting point of 15 years’ might very well have a crushing effect on the defendant, I find that it is the proper sentence to impose upon the proper application of the guidelines.

41.Taking a step back, I find that such a sentence in the circumstances is a fair, just and balanced sentence.  As such, there is to be no reduction of sentence under this step.

FINAL SENTENCE

42.The sentence after granting the defendant the full one-third discount for his timely guilty plea is, therefore, 10 years’ imprisonment.

Ms. Rosa LO, Senior Public Prosecutor of the Department of Justice, for the Prosecution/ HKSAR

Mr. Paulinus LO instructed by Messrs. CMK Lawyers, assigned by D.L.A, for the Defendant