HKSAR v. Cheung Ho Pan

DCCC 962/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 962 OF 2013

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REASONS FOR SENTENCE

1.The defendant faces one charge of "Trafficking in a dangerous drug" (Charge 1); one charge of "Offer to traffic in a dangerous drug" (Charge 2); and one charge of "Possession of a dangerous drug" (Charge 3).

2.He pleaded guilty to Charges 1 and 3.  In respect of Charge 2, the prosecution applied to leave it in the court file; not to be proceeded against the defendant without leave of court.  I granted the application.

Summary of Facts

3.In September 2012, WPC 12260 (PW1) began her undercover operation.

Charge 1

4.On 15 November 2012, PW1 came across someone known as Terry on the internet.  In their conversation, Terry talked about "ICE".  They also exchanged phone numbers.  On 16 November, PW1 called Terry and he offered to sell her one "stroke" of "pork" for $550.

5.About 11:50 pm on the same day, PW1 met up with Terry (later identified as the defendant) on 7^th Floor, Ying Shui House, Shui Pin Wai Estate, Yuen Long.  Terry gave PW1 a plastic bag (E1) and received $550 from her.  He left after the transaction.

6.PW1 notified DPC 3024 (PW2) of the description of Terry.  PW2 saw Terry coming out of Ying Shui House and walking to the car park to meet up with another male.  PW2 stopped both of them for an ID check and recorded their personal particulars.

7.E1 was later found to contain 0.71 gramme of a crystalline solid containing 0.67 gramme of methamphetamine hydrochloride.

8.In a subsequent identification parade, PW1 identified the defendant as Terry who sold her E1 on 16 November 2012.

Charge 3

9.The defendant was put on the wanted list by the Police.  On 6 July 2013, he was arrested by the Police and was taken to Mongkok Police Station.  A body search of the defendant was conducted in the male toilet of the Report Room; 2 plastic bags (collectively "E2") were found inside his underwear.  Under caution, the defendant admitted that E2 belonged to him.  E2 was later found to contain a total of 13.89 grammes of a mixture containing 10.02 grammes of heroin hydrochloride.

Mitigation & Sentence

10.The defendant is now 31 and has 4 conviction records, which include 2 "simple possession" offences and 1 "trafficking" offence.  He was last discharged from prison in January 2012 after serving sentence for a series of non drug-related offences.

11.Defence counsel Mr. MA informed me that the defendant had a daughter who passed away in 2006 when she was only 6 months old.  He now has a son (aged 7) with his former cohabitee. The defendant's mother (aged 58) had a stroke in August this year and is now home-bound.

12.Regarding Charge 1, Mr. MA submitted that the defendant only had the intention to meet girls on the internet; he did not intend to sell dangerous drugs.  Despite having PW1's phone number, there was no follow-up or continuous selling to her by the defendant after Charge 1. Furthermore, according to the Summary of Facts, the defendant sold E1 to PW1 at a price below its street value.

13.A clear message must be conveyed to the general public that "drug trafficking" is a serious crime and that drug traffickers would most certainly be punished by long-term imprisonment even for fresh offenders.

The Court of Appeal has laid down clear sentencing guidelines for trafficking in ICE (see A-G v CHING Kwok-hung [1991] 2 HKLR 125). For up to 10 grammes, the sentence ranges from 3 to 7 years' imprisonment.

14.In Charge 1, the defendant trafficked in 0.67 gramme of ICE. For such a small amount, a slightly lower starting point can be used.  I adopt 30 months' imprisonment as the starting point.  A one-third discount is given for the guilty plea, reducing the sentence to 20 months.  Apart from this, I see no other mitigating factors which warrant any further discount.

15.In Charge 3, the defendant possessed 10.02 grammes of heroin, which is a significant quantity by any standard.  I am aware that the drug was contained in only 2 plastic bags but hidden in the defendant's underwear.  The defendant has conviction records involving 2 "simple possession" offences and 1 "trafficking" offence.  He has also served time in a Drug Addiction Treatment Centre.  I have reminded myself of the relevant sentencing authorities.[1] I adopt a starting point of 15 months' imprisonment.  I will enhance the sentence by 6 months to reflect the "latent risk" factor.  With the one-third discount, the sentence is reduced to 14 months.

16.Charges 1 and 3 are separate and distinct.  They took place over 7 months apart.  Having considered the totality principle, I order 8 months in Charge 3 to run consecutive to Charge 1, thereby arriving at a total prison term of 28 months for both charges.