HKSAR v. Chong Hung Kong

DCCC 640/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 640 OF 2014

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Reasons for Sentence

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1.The defendant pleaded guilty to one charge of trafficking in dangerous drugs.  It was a stop-and-search case which took place at Mong Kok in the early hours on 25 May this year.

2.Upon search by police officers, a cigarette box was found in the right rear pocket of the defendant’s trousers. The cigarette box was found to contain two plastic bags containing a total of 8.59 grammes of a solid containing 8.25 grammes of methamphetamine hydrochloride (ie ‘Ice’) and one plastic bag containing 14.11 grammes of a solid containing 7.76 grammes of heroin hydrochloride.

3.Under caution, the defendant claimed that the ‘Ice’ and the white powder were for his self-consumption.  Also found on the defendant were two mobile phones and some cash.

4.The street value of the ‘Ice’ and heroin in this case were $3,625 and $10,780 respectively.

5.The defendant has 26 previous convictions, two for trafficking in dangerous drugs in March 2010.  He also has seven previous convictions for possession of dangerous drugs.

6.In mitigation, the defendant’s solicitor, Mr Yeung, said the defendant is aged 35.  He is a long-term addict.  Plea of self-consumption of the ‘Ice’ in the charge was initially raised but subsequently withdrawn after instruction taken from the defendant.

7.Mr Yeung drew my attention to HKSAR v Yip Wai Yin, CACC 80/2003 and AG v Ching Kwok Hung [1991] 2 HKLR 125.

8.Relying on Yip Wai Yin, Mr Yeung submitted that the appropriate starting point in the present case is 7 years’ imprisonment.  The approach he took was first adding the quantity of the two drugs in the charge to arrive at the total quantity of 16.01 grammes.  This total quantity, it was submitted, should be used as the base to calculate the proper starting point.  Mr Yeung seems to be adopting the combined approach.  The starting point of 16 grammes of ‘Ice’, it was then submitted, should be 7 years. 

9.Mr Yeung asked the court to give the full one-third discount to the defendant for his plea of guilty.

10.Mr Hui, Public Prosecutor of the DOJ, submitted HKSAR v Wan Lau Mei, CACC 389/2013, as the proper approach to be taken in fixing the starting point for a combination of drugs.

11.With respect to Mr Yeung, his approach might not be correct.

12.When the combined approach is adopted to calculate a starting point, the court is first to calculate the applicable sentence for the more or most serious drug and then adjust the sentence upwards to take into account the less serious drug to arrive at an ultimate sentence.

13.It would be unfair to the defendant if the aggregate quantity for the two drugs is used as if they were all ‘Ice’ to calculate the sentence, as heroin is less potent than ‘Ice’ and attracted a lesser sentence.

14.16 grammes of ‘Ice’ would attract about 7½ years’ imprisonment using the new tariff in HKSAR v Tam Yi Chun, CACC 524/2011. 

15.The proper approach, in my view, is, first, by setting the appropriate term for the ‘Ice’ and then taking into account the quantity of heroin, adjust the sentence upwards.

16.The proper starting point for 8.25 grammes of ‘Ice’ and 7.76 grammes of heroin should be about 5 years and 9 months and 4 years respectively.

17.I would use ‘Ice’ as the base.  Taking into account the quantity of heroin, I add 1 year to reach the overall starting point of 6 years and 9 months’ imprisonment.

18.The defendant has two previous convictions for two charges of trafficking in dangerous drugs.  As the two convictions were recorded on the same day with same police case reference and the sentences were ordered to run concurrently, it is likely that the two offences were treated as the same series of offence. 

19.I will not treat the defendant as a persistent offender and enhance the sentence on this basis.

20.Apart from the plea of guilty, no other mitigating factors have been put forward in mitigation.

21.For his plea of guilty, I will give the defendant the full one-third discount.

22.The defendant is, therefore, sentenced to 4½ years’ imprisonment.