HKSAR v. Cheng Hoi Man

DCCC 566/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 566 OF 2010

--------------------

--------------------

--------------------

REASONS FOR SENTENCE

--------------------

1.The Defendant appeared before me on 22^nd October, 2010 in respect of DCCC 566/2010.  The Defendant himself had written to the Court by letter dated 6^th September, 2010 of his intention to plead guilty in respect of another  matter that had been set down for trial on 26^th November, 2010, namely DCCC 674/2010. When informed of this by the Court, Counsel for the Defendant sought an adjournment to confirm this intention with the Defendant, and to take instructions to represent the Defendant in DCCC 674/2010. I granted the application for an adjournments, and directed that both matters be brought up for plea on 25^th October, 2010.

2.When the matter resumed before me on 25^th October, 2010, the Defendant pleaded guilty to the charges he faced in both matters.

DCCC 566/2010

3.The Defendant pleaded guilty to one count of trafficking in dangerous drugs, namely 24.48 grammes of a powder containing 20.71 grammes of ketamine, contrary to Sections 4(1)(a) and (3) of the dangerous Drugs Ordinance, Cap. 210.

4.Facts admitted by the Defendant disclosed that on 15^th March, 2010, police officers intercepted the Defendant outside Shop F17, Wan Tsui Estate Shopping Centre. Chai Wan. He was escorted to his home at Room 1229, Chak Tsui House, Wan Tsui Estate, Wan Tsui Road, Chai Wan for home search under a search warrant.  Upon search, the dangerous drugs the subject matter of the charge were found from one of the drawers of a plastic cabinet inside the premises. He was arrested for the offence of trafficking in dangerous drugs, and admitted under caution that the dangerous drugs found was ketamine, and were for his own consumption. When interviewed under caution subsequently, he said he had purchased the drugs for $1,500 from a male in a bar in Tsim Sha Tsui and had kept them inside the drawer without consuming any of it.

DCCC 674/2010

5.The Defendant herein was D2 on the indictment. At the outset, the Defendant faced 2 counts on the indictment dated 29^th July, 2010, namely count 2 of trafficking in dangerous drugs, namely 65.90 grammes of a powder containing 52.56 grammes of ketamine, contrary to Sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 210 and Count 3 of  possession of an offensive weapon, contrary to Section 17 of the Summary Offences Ordinance, Cap. 228. D1 on the indictment faced Count 1 of possession of dangerous drugs, namely 16.10 grammes of a powder containing 13.63 grammes of ketamine.  At the first hearing on 30^th July, 2010, before His Honour Judge Stanley Chan, D1 indicated his intention to plead guilty, whilst D2, the Defendant herein, indicated his intention to plead not guilty, and the matter was set down for trial on 26^th November, 2010. D1 entered his plea of guilty to count 1 on 25^th July, 2010 and was convicted of that charge by His Honour Judge D. Yau. As D1 indicated that he would testify  for the prosecution against D2, his sentence was adjourned until the conclusion of the trial of D2.  D2 indicated by his letter dated 6^th September, 2010 to the Court that he wished for DCCC 674/2010 to be dealt with together with DCCC 566/2010 which had been set down for trial on 22^nd October, 2010, and it was his intention to plead guilty to both matters.  As a result of D1 being willing to testify  that he had bought the drugs in question from D2, the Prosecution decided to prosecute D2 for trafficking in the dangerous drugs that were sold to D1.  On 25^th October, 2010,  the Prosecution initially sought to amend charge 1 on the indictment (a count of possession of dangerous drugs against D1 only) to a count of trafficking in dangerous drugs in respect of the same drugs against D2 (re-amended indictment dated 21^st October, 2010).  However, after discussion between Counsel for the Prosecution and the Defence, the Prosecution sought leave to amend the indictment (re-amended indictment dated 25^th October, 2010) and the additional charge 4 of trafficking in a dangerous drug was laid against D2.  There was no objection to this additional charge being laid.  The Defendant entered pleas to all the charges he faced, namely two counts of trafficking in dangerous drugs, contrary to Sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 210, and possession of an offensive weapon, contrary to Section 17 of the Summary Offences Ordinance, Cap. 228.

6.Facts admitted by the Defendant disclosed that on 1^st May, 2010,  he telephoned D1, a 16 year old male, and offered him some ‘new stuff’ for his trial. D1 accepted. At 2145 hours that day, D1 arrived at Room 1229, 12/fl., Chak Tsui House, Wan Tsui Estate, Chai Wan, the Defendant’s residence. The Defendant gave D1 the dangerous drugs the subject matter of count 4, namely 16.10 grammes of a powder containing 13.63 grammes of ketamine, after which D1 left, count 4 on the indictment. As the police were carrying out an operation at the material time, targeting the Defendant’s residence, D1 was followed by the police after he left the Defendant’s residence, and he was intercepted and searched, and the drugs were found from him. He was arrested and under caution said he had purchase the ‘k chai’ earlier from the premises from Hung Mo Man (the alias of Cheng Hoi-man, the Defendant herein), for self-consumption. D1 appeared before me this morning and entered a plea to possession of dangerous drugs in respect of these dangerous drugs found on him, and I have adjourned his sentence until 29^th November, 2010, remanding him in custody, and calling for a variety of reports. Subsequently at 2202 hours when the Defendant left his residence, he was intercepted by police officers. He had tried to flee, but was subdued after a short struggle. He was carrying a plastic bag containing 9 plastic bags containing a total of 65.90 grammes of a powder containing 52.56 grammes of a ketamine.  He was arrested and  cautioned, and remained silent under caution.  This is Count 2 on the indictment.  When his premises were searched, a 23 inch machete and a sheath were found underneath a bed in the living room. He claimed when interviewed under caution that he was keeping the machete temporarily for a friend who had given it to him some days previously. This is count 3 on the indictment.

7.In the particulars of count 3,  the particulars were that he was in possession of an offensive weapon, the machete, with intent to use it for an unlawful purpose, namely dealing with a dangerous drugs.  Counsel for the Prosecution submitted that there was circumstantial evidence of this unlawful purpose – the machete was found in his residence, there was a large quantity of dangerous drugs, and the only inference to be drawn was that it was there to be used, should something go wrong in his drug trafficking operation, and he would use it should the need arise. Counsel for the Defendant confirmed this.

8.On the basis of his pleas and admissions, I convicted the Defendant of the charges he faced in DCCC 566/2010 and DCCC  674/2010.

9.After hearing Counsel in mitigation, I adjourned the matter until today, and called for a Background Report.

10.The Defendant was born on 28^th October, 1989.  He was 20 years old at the time of the offences but he is now aged 21 years old. He has 2 previous convictions, including one for possession of dangerous drugs on 16 January, 2009, when he was fined.  Counsel for the Defendant asked me to consider Training Centre in view of the Defendant’s age.  I did not think it appropriate in view of the nature of the charges that he faced. Also, the Defendant had been sentenced to the Training Centre once before, in 2005, for offences of burglary.

11.I have carefully considered all that has been urged upon me in mitigation by Counsel on behalf of the Defendant, as well as the contents of the Background Report before me. His background is set out in great detail in the Background report and I do not propose to rehearse the contents again herein. Counsel submitted that at the time of the offence in DCCC 566/2010, the Defendant was a ketamine user, but by the time of the offence in DCCC 674/2010, he was no longer a user. He offended in the hope of earning some quick money.

12.In mitigation, it was said that the Defendant is truly remorseful and is determined to turn over a new leaf. A lenient sentence is therefore sough. His mother is in Court today to show her support for the Defendant.

13.This is not the Defendant’s first conviction. One offence was committed whilst on bail for the other, and that must be viewed as an aggravating feature.

14.Save for his plea of guilty, there is really little else in mitigation before me.

15.In the Secretary for Justice v Hii Siew Cheng & Anor. [2009] 1 HKLRD 1, the Court of Appeal laid down the tariffs for trafficking in ketamine. For trafficking 10 to 50 grammes of ketamine, a term of imprisonment of between 4 to 6 years is called for, whilst for a quantity of  50 to 300 grammes, a term of imprisonment of 6 to 9 years is called for.

16.The court has said time and again that there is a need for deterrence when dealing with offences like trafficking in a dangerous drug, and that young age carries little weight in mitigation.

17.In the present case, the matters urged upon me cannot detract from the fact that a deterrent sentence is called for as our society needs to get the message that trafficking in a dangerous drug is a very serious offence, in particular the trafficking of dangerous drugs to young people. The only mitigation which is of use here is the defendant’s pleas, and for that, he will be given a one-third discount.

18.In DCCC 566/2010, the ketamine involved is 20.71 grammes.  For this quantity, I consider a starting point of 4 1/2 years, that is 54 months, to be appropriate. He is entitled to a discount of one-third – that is a sentence of 3 years’ imprisonment.

19.In DCCC 674/2010, the ketamine involved in count 2 is 13.63 grammes, whilst that in count 4 is 52.56 grammes.  Defence Counsel submits that this should be viewed as one lot of dangerous drugs.  I do not agree – these are separate and distinct offences. On count 2, I take as a starting point 4 years imprisonment, that is 48 months. He is entitled to a discount of one-third – that is 32 months’ imprisonment. On count 3, for the offensive of possession of an offensive weapon, I take as a starting point 9 months’ imprisonment, discount it by one-third for his plea and sentence him to 6 months’ imprisonment.  On count 4, I take as a starting point 6 years’ imprisonment, discount it by one-third to reflect his plea and sentence him to 4 years’ imprisonment.

20.The offences are all separate and distinct offences and warrant consecutive sentences. As I have said, DCCC 674/2010 was committed whilst on bail for DCCC 566/2010, and I view that as an aggravating feature. But I do take into account the totality principle in sentencing. I shall order that the sentences in DCCC 674/2010 all be served concurrently, that is a total of 4 years, imprisonment. 1 year is to be concurrent with the sentence in DCCC 566/2010, and the rest consecutive. That is a total of 6 years’ imprisonment.