HKSAR v. Yu Kwok Cheung

DCCC61/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 61 OF 2010

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Reasons for Sentence

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1.Defendant, you pleaded guilty to a single offence of conspiracy to traffic in dangerous drugs, contrary to sections 4(1)(a) and (3) and 39 of the Dangerous Drugs Ordinance, Cap.134 and sections 159A and 159C of the Crimes Ordinance, Cap.200. You admitted the Brief Facts and I convicted you.

2.The facts were as follows. PC3483(3484?), PW1, was instructed to purchase dangerous drugs under cover. At about 1743 hours on 21 September of last year, he walked past you outside No. 325 Ferry Street, Mongkok. This is near Thistle Rest Garden. You asked him if he wanted to buy “4 chai” for $140, so PW1 paid with marked banknotes and received a plastic packet of dangerous drugs which is Exhibit E1. You extracted the packet from your mouth.

3.At about 1707 hours on 22 September of last year, PW1 again passed you at the same location. You again asked him if he wanted to buy “4 chai,” and PW1 gave you $140 in marked notes and received a plastic packet of dangerous drugs, E2, again from your mouth.

4.At around 1844 hours on 23 September, assisted by a police dog, PC54868 found two packets of dangerous drugs from above a roller shutter of the Ground Floor, 325 Ferry Street, some 10 metres from Thistle Street Rest Garden contained in a metal box. One packet, E3, contained 13 plastic packets, and the other, E4, 26 plastic packets of suspected dangerous drugs.

5.On 25 September of last year, PC33483 arrested you at your home in Shatin. You remained silent.

6.Interviewed under caution on 26 September, you admitted the following:

(1)  You sold E1 and E2 to PW1 on 21 and 22 September respectively;

(2)  you had been invited by a male, Ah Shu, about a month before to sell heroin;

(3)  you had worked at the location for three weeks daily between 1600 hours and 2200 hours, earning $500 per day;

(4)  at 1600 hours each day, you retrieved 30 to 40 packets of heroin from locations given to you by Ah Shu;

(5)  at about 2200 hours, you placed unsold packets inside a cigarette box and left them on the ground;

(6)  you handed the money to your boss in a restaurant after 2200 hours, or if you received more than $1,000, you would pass it over to him at the scene;

(7)  the smaller blue packet you sold for $140 and the larger red ones for $200.

7.Later analysis showed E1 contained 0.18 grammes of a mixture containing 0.1 grammes of heroin hydrochloride; E2, 0.15 grammes of a mixture containing 0.09 grammes of heroin hydrochloride; E3, 2.98 grammes of a mixture containing 1.76 grammes of heroin hydrochloride; and E4, 5.38 grammes of a mixture containing 3.12 grammes of heroin hydrochloride.

8.E1 and E3 were subjected to DNA testing and samples from you matched samples from E3.

9.In a further interview, you denied that E3 and E4 had anything to do with you.

10.Between 1 and 22 September of last year, you conspired with Ah Shu to traffic in an unknown quantity of dangerous drugs.

11.You admitted to 14 previous convictions on 12 previous occasions, 9 of which involved dangerous drugs. I do note that your last conviction relating to drugs was something 10 years ago.

12.On your behalf, Miss Cheung entered mitigation. She told me that you reside with your girlfriend who suffers from depression and psychiatric problems. Prior to arrest, you were unemployed and relying on social security. You and your girlfriend have a son of 7 who resides with foster parents. Miss Cheung rightly submitted the facts showed that you were not the ringleader as you were employed by Ah Shu, earning $500 per day. She pointed to your co-operation with the police on arrest and making admissions upon which this charge is based. She conceded that you had been shown to have dealt with dangerous drugs, namely, Exhibits 1 to 4, giving a total of 8.69 grammes of a mixture containing 5.08 grammes of heroin hydrochloride.

13.She said to base the sentence on any other amount would be unfair to you as it was not proved, your further admissions being merely talk. By this, I take it to mean that she was submitting it was merely talk that when you said you had been dealing for some three weeks prior to 22 September.

14.Mr Polson, stressing that this was a neutral submission, did remind the court that you had made admissions to having dealt for three weeks and that the theory of the prosecution case was that it was in the 10-to-50-grammes range of heroin hydrochloride upon which sentence should be based.

15.Whilst I do note this and I do, with respect, make the point that I only decide upon the facts, not speculation, not take into account what the theory of the prosecution case is, that is for them. Miss Cheung in closing her submissions reminded the court that you had pleaded guilty and asked for a full discount.

16.I turn now to the sentence. This is a charge of conspiracy to traffic in an unknown amount of dangerous drugs. The relevance of any amount shown to actually have been trafficked is to gauge the scale and the seriousness of that conspiracy. This is a conspiracy over three weeks. On your behalf, Miss Cheung has accepted the prosecution has proved just over 5 grammes were trafficked. And I also note that you admitted both to the police and in the admitted facts that you had conspired over a period of three weeks, conspired to the effect that you had agreed to traffic in drugs for Ah Shu.

17.Indeed, the period of three weeks is that specified in the charge, to which you have pleaded guilty, and in the admitted facts which you have admitted. To ignore the length of the conspiracy when dealing clearly must have taken place would be illogical and nonsensical. By the same token, I can take no account of the prosecution’s theory of the case. However, the conclusion I draw is that whilst I cannot and do not know the actual amount involved, it is clearly well in excess of the 5 grammes which you accept as proven. Based on your own admissions, there must in addition be the amounts that you trafficked in over that period of three weeks prior to arrest. Therefore, the amount involved in the conspiracy and the trafficking itself is clearly well over 5 grammes.

18.In your favour, I do take into account that you were not the prime mover in this conspiracy. You were merely a foot soldier. Also, I note that you were extremely co-operative with the police and it is upon your own admissions that the charge is based. Perhaps of lesser significance but worthy of mention is the fact that this is your first conviction for dangerous drugs for 10 years. Whilst there is a conspiracy to traffic and the amount is clearly unknown, it is in excess of 5 grammes as I have said. This is of course based upon, as I have also already mentioned, your acceptance of trafficking for some three weeks prior to arrest, and that was on a daily basis.

19.Therefore, I take as a starting point in this case some 5 years’ imprisonment. You have pleaded guilty. You are entitled to receive one-third discount. You will therefore go to prison for 3 years and 4 months - 40 months.