HKSAR v. Cheng Chun Wai

DCCC772/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 772 OF 2014

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Reasons for Sentence

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1.The defendant was convicted after trial of one charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134, Laws of Hong Kong. The dangerous drug in question was 30.02 grammes of a mixture containing 16.97 grammes of heroin hydrochloride (“the Drug”). His plea to simple possession was rejected.

Facts

2.The facts pertaining to this case have been set out in full in the Reasons for Verdict.  In gist, about 1:20 a.m. on 27 June 2014, when a team of police officers patrolled to the pavement outside the New Capital Computer Plaza at No. 85 - 95 Un Chau Street, Sham Shui Po, they noticed the defendant board a taxi in a hurry when he spotted the presence of the police officers.  The officers then asked defendant to alight from the taxi and subjected him to enquiries and searches.  The defendant was found to be in possession of two re-sealable plastic bags containing the Drug wrapped up by a piece of white tissue paper from inside the waist band of his underpants.  The defendant was arrested for the offence of possession of a dangerous drug.  Under caution at the scene, he said that he possessed the Drug for the purpose of his own consumption.  He repeated that he had the Drug for the same purpose during his subsequent video-recorded interview.

3.The street value of the Drug if it were sold in packets of less than 5 grammes in June 2014 was estimated to be $21,674.

4.Subsequent police enquiries revealed that the defendant had been lingering around in the Sham Shui Po area for at least 42 minutes in the Sham Shui Po area with this quantity of drug before his interception by the police.  This Court drew the only reasonable and irresistible inference from all the circumstances of the case that he was in possession of the Drug for the purpose of trafficking.

Criminal record

5.The defendant has 13 criminal convictions involving a total of 20 charges.  Not only did he have convictions for possession of dangerous drugs, he was also convicted of offences of divan keeping and two counts of trafficking in dangerous drugs in 2002.  His latest sentence was imposed on 8 March 2013 when he was sentenced to 16 months’ imprisonment also for the offence of trafficking in dangerous drugs.  Mr. Booth informed me that the defendant trafficked in a small quantity of heroin on that occasion.

Personal and family background

6.According to the antecedent statement submitted by the prosecution, the defendant has just turned 37 years old.  He was born in Hong Kong.  He was educated up to Form Two.  He was single and lived alone. 

Mitigation

7.Mr. Booth realized that this court was bound by the sentencing tariff.  He just pointed out that once the defendant got addicted to drug since the age of 14, it would be very difficult for him to get out of this life style.  He also drew my attention to the fact that there was no evidence of actual trafficking by the defendant.

Reasons for sentence

8.Trafficking in a dangerous drug has always been regarded by the courts in Hong Kong to be a very serious offence.  For this reason, even if the amount of the dangerous drug being trafficked is small, the usual sentencing option is still one of imprisonment.  It is only in cases where the facts are unusual or where exceptional mitigating factors exist that this sentencing option will not be used.

9.In the present case, Mr. Booth had not sought to argue that the defendant should not be sentenced to prison.  This is a very realistic approach because the facts of this case, the background of the defendant including his criminal record, and the sentencing tariff laid down by the Court of Appeal all lead to the inevitable conclusion that a sentence of immediate term of imprisonment is the only viable sentencing option.

10.As to the quantum of the sentence, the Court of Appeal has laid down the tariff that for trafficking between 10 grammes and 50 grammes of heroin hydrochloride, the starting point of the prison term to be imposed after trial should be 5 to 8 years: The Queen v Lau Tak Ming & Others [1990] 2 HKLR 370.  This sentencing tariff will apply not only to cases involving actual trafficking but also cases involving possession of dangerous drugs for the purpose of trafficking.  Hence, the fact that the defendant was not found to have actually handing over possession of the Drug to others is immaterial.

11.In the present case, the total quantity of heroin hydrochloride involved was 16.97 grammes.  Applying the sentencing tariff to this case, I adopt a starting point of 63 months’ imprisonment.

12.There is one aggravating factor in this case.  The defendant had been convicted of trafficking in dangerous drugs on two prior occasions, once in 2002 and the other one in 2013.  Since the first trafficking conviction was in 2002, I will ignore it because it was long ago.  However, I cannot ignore his last conviction for trafficking, also involving heroin, because he committed the present offence within 7 months of his release from prison for that offence on 29 November 2013.  To reflect this aggravating factor, I adjust the defendant’s sentence upward by 3 months.

13.In other words, unless there is valid mitigating factor that operates to reduce his sentence, the defendant will go to prison for 66 months.

14.As to the mitigating factors, the defendant was convicted after trial.  He will not be punished for pleading not guilty, but he would not have the benefit in sentencing that may flow from a guilty plea.

15.There is however one mitigating factor in his favour.  He had been co-operative with the prosecution in the sense that he had agreed to a lot of the prosecution evidence and did not really challenge the evidence of any of the prosecution witnesses.  His co-operation shortened the trial and made the trial proceed efficiently.  I am prepared to reduce his sentence by 6 months on this ground.

16.There is however no other ground upon which his sentence can be further reduced.

17.The defendant is therefore sentenced to imprisonment for 60 months.