HKSAR v. Cheung Hoi Fu

DCCC 684/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 684 OF 2014

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REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Trafficking in dangerous drugs". The dangerous drugs involved are ketamine and cocaine.

Summary of Facts

2.About 2:00 a.m. on 10 May 2014, PC 58002 (PW1) observed a private car NX 6115 ("the Car") stopping outside Man Tai House, Tsz Man Estate.  The defendant was seen sitting in the driver's seat, whilst a male named YU was standing next to the Car with his upper body leaning towards the driver's seat.

3.The defendant was seen handing over a clump of tissue to YU.  YU then walked towards the main entrance of Man Tai House. Upon seeing policemen, YU suddenly threw the clump of tissue into a flowerbed.

4.PC 11779 (PW2) intercepted YU and retrieved the clump of tissue from the flowerbed in front of him.  The clump of tissue was found to contain 2 transparent resealable plastic bags which contained a total of 0.46 gramme of a solid containing 0.18 gramme of cocaine (collectively "E1").

5.At the same time, PW1 intercepted the defendant for enquiries.  Both the defendant and the Car were searched.  The following items were found inside a compartment beneath a window switch on the driver's door :-

(i) 5 transparent resealable plastic bags which contained a total of 66.36 grammes of a powder containing 54.66 grammes of ketamine (collectively "E2");

(ii) 21 transparent resealable plastic bags which contained a total of 4.73 grammes of a solid containing 1.82 grammes of cocaine (collectively "E3"); and

(iii) 1 transparent resealable plastic bag which contained 1.61 gramme of a powder containing 0.91 gramme of ketamine ("E4").

6.Under caution, the defendant admitted having provided some cocaine to YU free of charge, and that he was delivering drugs to others for money.  In his video-recorded interview, he admitted that he was helping his boss "Ah Hung" to traffick in dangerous drugs. Upon instruction, he drove the Car to To Kwa Wan to collect the drugs.  He kept the drugs in the driver's seat, waiting for delivery orders.  The defendant claimed that he sold the ketamine at $700 per packet; and the cocaine, $250 per packet.  He also admitted that he has been a drug carrier for Ah Hung since late 2013, earning $10,000 to $20,000 per month.

7.The defendant is the registered owner of the Car.

Mitigation & Sentence

8.The defendant recently turned 29 and has 4 conviction records, none of which are related to dangerous drugs.

9.Defence lawyer Ms. HUNG informed me that the defendant is single and was working as a light goods vehicle driver earning $15,000 per month prior to the present offence.

10.In mitigation, Ms. HUNG submitted that the defendant has a poor relationship with his parents.  He therefore moved to live with his god sister.  He contributed part of his income to his god sister. Furthermore, the defendant's employer speaks highly of him and is willing to take him back when he finished serving his sentence.  Two mitigation letters were placed before me; their contents are duly noted.

11.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.

12.The Court of Appeal has laid down clear sentencing guidelines for trafficking in ketamine (see  SJ v HII Siew Cheng [2009] 1 HKLRD 1) and cocaine (see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 and The Queen v LAU Tak-ming & others [1990] 2 HKLR 370).  For 50 to 300 grammes of ketamine, the sentence ranges from 6 to 9 years' imprisonment.  For up to 10 grammes of cocaine, the sentence ranges from 2 to 5 years' imprisonment.

13.In determining the proper starting point, I have reminded myself of the sentencing principles for trafficking in cocktail drugs stated in HKSAR v YIP Wai-yin & another CACC 80/2003 and HKSAR v CHENG Yat-ming CACC 455/2006.

14.In the present case, the defendant trafficked in a cocktail of drugs consisting of 55.57 grammes of ketamine and 2.00 grammes of cocaine.  For 55.57 grammes of ketamine, the appropriate starting point is 5 years.  For 2.00 grammes of cocaine, the appropriate starting point is 2 years.  I am of the view that the "combined approach" would arrive at a realistic and fair sentence. 

15.In HKSAR v KO Ka Hing [2009] 4 HKLRD 856, the Court of Appeal held that where the "combined approach" is taken, the court will rely on common sense in determining which type of the dangerous drugs is to be regarded as the more serious, hence forming the basis of the starting point. For example, a certain type of drug, although less potent, may be present in much larger quantity than another, in which case its quantity will form the basis for the starting point. [1]

16.Although cocaine is more potent than ketamine, the ketamine involved in the present case is in a much larger quantity than the cocaine. The quantity of ketamine shall form the basis of the starting point.  Hence, I adopt a starting point of 5 years' imprisonment and adjust it upward by 6 months for the cocaine, arriving at 66 months. A one-third discount is given for the guilty plea, reducing the sentence to 44 months. Apart from this, I see no other mitigating factors which warrant any further discount.  I hereby sentence the defendant to 44 months' imprisonment.