HKSAR v. Cheng Kwong Sang

DCCC 141/2024

[2024] HKDC 1992

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 141 OF 2024

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to a charge of trafficking in dangerous drugs, namely :-

(a)  a narcotic content of 4.81 grammes of cocaine and

(b)  1.66 grammes of ketamine

Summary of facts

2.On 9 September 2023, at about 3:17 am, the police noticed a female acting suspiciously beside a parked vehicle in Nam Cheong Street, Sham Shui Po, Kowloon.

3.That female subsequently disappeared into Nam Cheong Centre. The police then intercepted the vehicle when the defendant was sitting on the driver seat.

4.During a body search on the defendant, the police found four re-sealable plastic bags containing a total of 0.56 grammes of cocaine wrapped by a piece of tissue paper inside the right pocket of the defendant’s shorts.

5.The defendant admitted under caution that the drugs were for his own consumption.

6.Further search of the vehicle, the police found :-

(a)  A transparent resealable plastic bag containing 29 orange resealable plastic bags containing a narcotic content of 4.25g of cocaine.

(b)  A transparent resealable plastic bag containing three blue re-sealable plastic bags containing a narcotic content of 1.66g of ketamine.

7.At the time of arrest, the defendant had HK$16,349 cash with him, together with RMB$920 and two mobile phones.

8.The estimate street value of cocaine was HK$5,648, while ketamine was HK$990, the total value was HK$6,638.

9.The register owner of the vehicle informed the police that the defendant borrowed her vehicle since 31^st, August 2023.

Mitigation

10.The defendant has no previous conviction record.

11.He is now 34 years old, divorced with a seven-year-old son. He used to live with his family before the arrest.

12.The defendant had obtained an external bachelor degree from an overseas university through distant learning and further obtained a continuing education certificate in general studies in 2021.

13.In 2019, the defendant used his saving to open a dessert restaurant, but due to the onset of pandemic, the shop was closed. The defendant lost all his saving.

14.He committed the present offence to earn quick money.  He is now remorseful.

Sentence

15.Applying the sentencing guidelines in trafficking of a 4.81 grammes of cocaine, it attracts a sentence of 3 years and 5 months. I refer to R v Lau Tak Ming [1990] 2 HKLR 370 and AG v Pedro Nel Rojas [1994] 2 HKCLR 69.

16.As to 1.66 grammes of ketamine, according to the sentencing guideline of S of J v Hii Siew Cheong [2009] 1 HKLRD 1, it attracts a sentence of 2 years and 2 months.

17.The Defence accepted that amongst the 2 types of dangerous drugs, the most potent dangerous drug is cocaine. The defence also refers to the case of HKSAR v Islam SM Majharul [2020] 3 HKLRD 146. That is the 7 steps approaches in arriving a proper and just sentence.

18.As such, cocaine should be used as the base drug for calculation of the 3 tests. Both parties agree on the results of the following calculation: -

•  The absurdity test :- 3 years and 6 months

•  The conversation test :- 3 years 11 months

•  The ratio test :- 3 years and 9 months

19.I take 3 years and 5 months as the starting point and increases the sentence by 4 months to take into account of the quantity of ketamine. It arrives at 3 years 9 months.

20.The defence accepted that there is aggravating factor in the present case.  As said in paragraph 6 of the judgement of HKSAR v Choy Wing Sing [2022] HKCA 381 that :-

(a)  The trafficking involved 2 types of drugs which would have catered for a wider market;

(b)  Ketamine is commonly used with another drug to prolong its effect ; and

(c)  The drugs were contained in many packets ready for distribution to a larger number of users.

21.I am not persuaded by the defence to enhance the sentence by only one month as it serves no purpose of deterrence. Against this background, I enhanced the sentence by 3 months. The total sentence is now arrives at 3 years 12 months :-

•  3 years 5 months + 4 months + 3 months = 3 years 12 months (4 years)

22.As the defendant is entitled to 1/3 discount, the sentence comes down to 32 months, that is 2 years 8 months.

23.Finally, the defence said that the defendant had done voluntary work in 2017 for about 10 times.  This nature of work was not continued with a period of time and it was done some 7 years ago.  As such, I consider that the defendant is not entitled to further deduction of sentence.

24.The defendant is ordered to serve a sentence for a period of 2 years 8 months imprisonment.