由此
A A
B B
DCCC 566/2010
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO. 566 OF 2010 E
--------------------
F F
HKSAR
G G
against
H
CHENG Hoi-man H
--------------------
I I
J Coram: Deputy District Judge Chainrai J
th
Date: 8 November 2010
K K
Present: Mr. Wong Chun Hin, Derek, Public Prosecutor, of the
L Department of Justice, for HKSAR L
Mr. Cheng Hoi Man of M/S. Paul Kwong & Co. for the
M M
Defendant
N Offence: Trafficking in a dangerous drug N
(販運危險藥物)
O O
P P
REASONS FOR SENTENCE
Q Q
nd
1． The Defendant appeared before me on 22 October, 2010 in
R R
respect of DCCC 566/2010. The Defendant himself had written to the
S Court by letter dated 6th September, 2010 of his intention to plead guilty in S
respect of another matter that had been set down for trial on 26 th
T T
U U
V V
由此
- 2 -
A A
B November, 2010, namely DCCC 674/2010. When informed of this by the B
Court, Counsel for the Defendant sought an adjournment to confirm this
C C
intention with the Defendant, and to take instructions to represent the
D Defendant in DCCC 674/2010. I granted the application for an D
adjournments, and directed that both matters be brought up for plea on 25th
E E
October, 2010.
F F
2. When the matter resumed before me on 25th October, 2010,
G G
the Defendant pleaded guilty to the charges he faced in both matters.
H H
DCCC 566/2010
I I
J 3. The Defendant pleaded guilty to one count of trafficking in J
dangerous drugs, namely 24.48 grammes of a powder containing 20.71
K K
grammes of ketamine, contrary to Sections 4(1)(a) and (3) of the
L L
dangerous Drugs Ordinance, Cap. 210.
M M
4. Facts admitted by the Defendant disclosed that on 15th March,
N N
2010, police officers intercepted the Defendant outside Shop F17, Wan
O Tsui Estate Shopping Centre. Chai Wan. He was escorted to his home at O
Room 1229, Chak Tsui House, Wan Tsui Estate, Wan Tsui Road, Chai
P P
Wan for home search under a search warrant. Upon search, the dangerous
Q drugs the subject matter of the charge were found from one of the drawers Q
of a plastic cabinet inside the premises. He was arrested for the offence of
R R
trafficking in dangerous drugs, and admitted under caution that the
S dangerous drugs found was ketamine, and were for his own consumption. S
When interviewed under caution subsequently, he said he had purchased
T T
U U
V V
由此
- 3 -
A A
B the drugs for $1,500 from a male in a bar in Tsim Sha Tsui and had kept B
them inside the drawer without consuming any of it.
C C
D DCCC 674/2010 D
E E
5. The Defendant herein was D2 on the indictment. At the outset,
F the Defendant faced 2 counts on the indictment dated 29th July, 2010, F
namely count 2 of trafficking in dangerous drugs, namely 65.90 grammes
G G
of a powder containing 52.56 grammes of ketamine, contrary to Sections
H 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 210 and Count 3 H
of possession of an offensive weapon, contrary to Section 17 of the
I I
Summary Offences Ordinance, Cap. 228. D1 on the indictment faced
J Count 1 of possession of dangerous drugs, namely 16.10 grammes of a J
powder containing 13.63 grammes of ketamine. At the first hearing on 30 th
K K
July, 2010, before His Honour Judge Stanley Chan, D1 indicated his
L L
intention to plead guilty, whilst D2, the Defendant herein, indicated his
M
intention to plead not guilty, and the matter was set down for trial on 26 th M
November, 2010. D1 entered his plea of guilty to count 1 on 25th July, 2010
N N
and was convicted of that charge by His Honour Judge D. Yau. As D1
O indicated that he would testify for the prosecution against D2, his sentence O
was adjourned until the conclusion of the trial of D2. D2 indicated by his
P P
letter dated 6th September, 2010 to the Court that he wished for DCCC
Q 674/2010 to be dealt with together with DCCC 566/2010 which had been Q
set down for trial on 22 nd October, 2010, and it was his intention to plead
R R
guilty to both matters. As a result of D1 being willing to testify that he had
S bought the drugs in question from D2, the Prosecution decided to S
prosecute D2 for trafficking in the dangerous drugs that were sold to D1.
T T
On 25th October, 2010, the Prosecution initially sought to amend charge 1
U U
V V
由此
- 4 -
A A
B on the indictment (a count of possession of dangerous drugs against D1 B
only) to a count of trafficking in dangerous drugs in respect of the same
C C
drugs against D2 (re-amended indictment dated 21st October, 2010).
D However, after discussion between Counsel for the Prosecution and the D
Defence, the Prosecution sought leave to amend the indictment
E E
th
(re-amended indictment dated 25 October, 2010) and the additional
F charge 4 of trafficking in a dangerous drug was laid against D2. There was F
no objection to this additional charge being laid. The Defendant entered
G G
pleas to all the charges he faced, namely two counts of trafficking in
H dangerous drugs, contrary to Sections 4(1)(a) and (3) of the Dangerous H
Drugs Ordinance, Cap. 210, and possession of an offensive weapon,
I I
contrary to Section 17 of the Summary Offences Ordinance, Cap. 228.
J J
6. Facts admitted by the Defendant disclosed that on 1st May,
K K
2010, he telephoned D1, a 16 year old male, and offered him some ‘new
L
stuff’ for his trial. D1 accepted. At 2145 hours that day, D1 arrived at L
M
Room 1229, 12/fl., Chak Tsui House, Wan Tsui Estate, Chai Wan, the M
Defendant’s residence. The Defendant gave D1 the dangerous drugs the
N N
subject matter of count 4, namely 16.10 grammes of a powder containing
O 13.63 grammes of ketamine, after which D1 left, count 4 on the indictment. O
As the police were carrying out an operation at the material time, targeting
P P
the Defendant’s residence, D1 was followed by the police after he left the
Q Defendant’s residence, and he was intercepted and searched, and the drugs Q
were found from him. He was arrested and under caution said he had
R R
purchase the ‘k chai’ earlier from the premises from Hung Mo Man (the
S alias of Cheng Hoi-man, the Defendant herein), for self-consumption. D1 S
appeared before me this morning and entered a plea to possession of
T T
dangerous drugs in respect of these dangerous drugs found on him, and I
U U
V V
由此
- 5 -
A A
B have adjourned his sentence until 29th November, 2010, remanding him in B
custody, and calling for a variety of reports. Subsequently at 2202 hours
C C
when the Defendant left his residence, he was intercepted by police
D officers. He had tried to flee, but was subdued after a short struggle. He D
was carrying a plastic bag containing 9 plastic bags containing a total of
E E
65.90 grammes of a powder containing 52.56 grammes of a ketamine. He
F was arrested and cautioned, and remained silent under caution. This is F
Count 2 on the indictment. When his premises were searched, a 23 inch
G G
machete and a sheath were found underneath a bed in the living room. He
H claimed when interviewed under caution that he was keeping the machete H
temporarily for a friend who had given it to him some days previously.
I I
This is count 3 on the indictment.
J J
7. In the particulars of count 3, the particulars were that he was
K K
in possession of an offensive weapon, the machete, with intent to use it for
L L
an unlawful purpose, namely dealing with a dangerous drugs. Counsel for
M
the Prosecution submitted that there was circumstantial evidence of this M
unlawful purpose – the machete was found in his residence, there was a
N N
large quantity of dangerous drugs, and the only inference to be drawn was
O that it was there to be used, should something go wrong in his drug O
trafficking operation, and he would use it should the need arise. Counsel
P P
for the Defendant confirmed this.
Q Q
8. On the basis of his pleas and admissions, I convicted the
R R
Defendant of the charges he faced in DCCC 566/2010 and DCCC
S 674/2010. S
T T
U U
V V
由此
- 6 -
A A
B 9. After hearing Counsel in mitigation, I adjourned the matter B
until today, and called for a Background Report.
C C
D 10. The Defendant was born on 28th October, 1989. He was 20 D
years old at the time of the offences but he is now aged 21 years old. He has
E E
2 previous convictions, including one for possession of dangerous drugs on
F 16 January, 2009, when he was fined. Counsel for the Defendant asked me F
to consider Training Centre in view of the Defendant’s age. I did not think
G G
it appropriate in view of the nature of the charges that he faced. Also, the
H Defendant had been sentenced to the Training Centre once before, in 2005, H
for offences of burglary.
I I
J 11. I have carefully considered all that has been urged upon me in J
mitigation by Counsel on behalf of the Defendant, as well as the contents
K K
of the Background Report before me. His background is set out in great
L L
detail in the Background report and I do not propose to rehearse the
M
contents again herein. Counsel submitted that at the time of the offence in M
DCCC 566/2010, the Defendant was a ketamine user, but by the time of the
N N
offence in DCCC 674/2010, he was no longer a user. He offended in the
O hope of earning some quick money. O
P P
12. In mitigation, it was said that the Defendant is truly
Q remorseful and is determined to turn over a new leaf. A lenient sentence is Q
therefore sough. His mother is in Court today to show her support for the
R R
Defendant.
S S
T T
U U
V V
由此
- 7 -
A A
B 13. This is not the Defendant’s first conviction. One offence was B
committed whilst on bail for the other, and that must be viewed as an
C C
aggravating feature.
D D
14. Save for his plea of guilty, there is really little else in
E E
mitigation before me.
F F
15. In the Secretary for Justice v Hii Siew Cheng & Anor. [2009]
G G
1 HKLRD 1, the Court of Appeal laid down the tariffs for trafficking in
H ketamine. For trafficking 10 to 50 grammes of ketamine, a term of H
imprisonment of between 4 to 6 years is called for, whilst for a quantity of
I I
50 to 300 grammes, a term of imprisonment of 6 to 9 years is called for.
J J
16. The court has said time and again that there is a need for
K K
deterrence when dealing with offences like trafficking in a dangerous drug,
L L
and that young age carries little weight in mitigation.
M M
17. In the present case, the matters urged upon me cannot detract
N N
from the fact that a deterrent sentence is called for as our society needs to
O get the message that trafficking in a dangerous drug is a very serious O
offence, in particular the trafficking of dangerous drugs to young people.
P P
The only mitigation which is of use here is the defendant’s pleas, and for
Q that, he will be given a one-third discount. Q
R R
18. In DCCC 566/2010, the ketamine involved is 20.71 grammes.
S For this quantity, I consider a starting point of 4 1/2 years, that is 54 S
months, to be appropriate. He is entitled to a discount of one-third – that is
T T
a sentence of 3 years’ imprisonment.
U U
V V
由此
- 8 -
A A
B B
19. In DCCC 674/2010, the ketamine involved in count 2 is 13.63
C C
grammes, whilst that in count 4 is 52.56 grammes. Defence Counsel
D submits that this should be viewed as one lot of dangerous drugs. I do not D
agree – these are separate and distinct offences. On count 2, I take as a
E E
starting point 4 years imprisonment, that is 48 months. He is entitled to a
F discount of one-third – that is 32 months’ imprisonment. On count 3, for F
the offensive of possession of an offensive weapon, I take as a starting
G G
point 9 months’ imprisonment, discount it by one-third for his plea and
H sentence him to 6 months’ imprisonment. On count 4, I take as a starting H
point 6 years’ imprisonment, discount it by one-third to reflect his plea and
I I
sentence him to 4 years’ imprisonment.
J J
20. The offences are all separate and distinct offences and warrant
K K
consecutive sentences. As I have said, DCCC 674/2010 was committed
L L
whilst on bail for DCCC 566/2010, and I view that as an aggravating
M
feature. But I do take into account the totality principle in sentencing. I M
shall order that the sentences in DCCC 674/2010 all be served concurrently,
N N
that is a total of 4 years, imprisonment. 1 year is to be concurrent with the
O sentence in DCCC 566/2010, and the rest consecutive. That is a total of 6 O
years’ imprisonment.
P P
Q Q
R R
（ Bina Chainrai ）
Deputy District Judge
S S
T T
U U
V V
由此
A A
B B
DCCC 566/2010
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO. 566 OF 2010 E
--------------------
F F
HKSAR
G G
against
H
CHENG Hoi-man H
--------------------
I I
J Coram: Deputy District Judge Chainrai J
th
Date: 8 November 2010
K K
Present: Mr. Wong Chun Hin, Derek, Public Prosecutor, of the
L Department of Justice, for HKSAR L
Mr. Cheng Hoi Man of M/S. Paul Kwong & Co. for the
M M
Defendant
N Offence: Trafficking in a dangerous drug N
(販運危險藥物)
O O
P P
REASONS FOR SENTENCE
Q Q
nd
1． The Defendant appeared before me on 22 October, 2010 in
R R
respect of DCCC 566/2010. The Defendant himself had written to the
S Court by letter dated 6th September, 2010 of his intention to plead guilty in S
respect of another matter that had been set down for trial on 26 th
T T
U U
V V
由此
- 2 -
A A
B November, 2010, namely DCCC 674/2010. When informed of this by the B
Court, Counsel for the Defendant sought an adjournment to confirm this
C C
intention with the Defendant, and to take instructions to represent the
D Defendant in DCCC 674/2010. I granted the application for an D
adjournments, and directed that both matters be brought up for plea on 25th
E E
October, 2010.
F F
2. When the matter resumed before me on 25th October, 2010,
G G
the Defendant pleaded guilty to the charges he faced in both matters.
H H
DCCC 566/2010
I I
J 3. The Defendant pleaded guilty to one count of trafficking in J
dangerous drugs, namely 24.48 grammes of a powder containing 20.71
K K
grammes of ketamine, contrary to Sections 4(1)(a) and (3) of the
L L
dangerous Drugs Ordinance, Cap. 210.
M M
4. Facts admitted by the Defendant disclosed that on 15th March,
N N
2010, police officers intercepted the Defendant outside Shop F17, Wan
O Tsui Estate Shopping Centre. Chai Wan. He was escorted to his home at O
Room 1229, Chak Tsui House, Wan Tsui Estate, Wan Tsui Road, Chai
P P
Wan for home search under a search warrant. Upon search, the dangerous
Q drugs the subject matter of the charge were found from one of the drawers Q
of a plastic cabinet inside the premises. He was arrested for the offence of
R R
trafficking in dangerous drugs, and admitted under caution that the
S dangerous drugs found was ketamine, and were for his own consumption. S
When interviewed under caution subsequently, he said he had purchased
T T
U U
V V
由此
- 3 -
A A
B the drugs for $1,500 from a male in a bar in Tsim Sha Tsui and had kept B
them inside the drawer without consuming any of it.
C C
D DCCC 674/2010 D
E E
5. The Defendant herein was D2 on the indictment. At the outset,
F the Defendant faced 2 counts on the indictment dated 29th July, 2010, F
namely count 2 of trafficking in dangerous drugs, namely 65.90 grammes
G G
of a powder containing 52.56 grammes of ketamine, contrary to Sections
H 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 210 and Count 3 H
of possession of an offensive weapon, contrary to Section 17 of the
I I
Summary Offences Ordinance, Cap. 228. D1 on the indictment faced
J Count 1 of possession of dangerous drugs, namely 16.10 grammes of a J
powder containing 13.63 grammes of ketamine. At the first hearing on 30 th
K K
July, 2010, before His Honour Judge Stanley Chan, D1 indicated his
L L
intention to plead guilty, whilst D2, the Defendant herein, indicated his
M
intention to plead not guilty, and the matter was set down for trial on 26 th M
November, 2010. D1 entered his plea of guilty to count 1 on 25th July, 2010
N N
and was convicted of that charge by His Honour Judge D. Yau. As D1
O indicated that he would testify for the prosecution against D2, his sentence O
was adjourned until the conclusion of the trial of D2. D2 indicated by his
P P
letter dated 6th September, 2010 to the Court that he wished for DCCC
Q 674/2010 to be dealt with together with DCCC 566/2010 which had been Q
set down for trial on 22 nd October, 2010, and it was his intention to plead
R R
guilty to both matters. As a result of D1 being willing to testify that he had
S bought the drugs in question from D2, the Prosecution decided to S
prosecute D2 for trafficking in the dangerous drugs that were sold to D1.
T T
On 25th October, 2010, the Prosecution initially sought to amend charge 1
U U
V V
由此
- 4 -
A A
B on the indictment (a count of possession of dangerous drugs against D1 B
only) to a count of trafficking in dangerous drugs in respect of the same
C C
drugs against D2 (re-amended indictment dated 21st October, 2010).
D However, after discussion between Counsel for the Prosecution and the D
Defence, the Prosecution sought leave to amend the indictment
E E
th
(re-amended indictment dated 25 October, 2010) and the additional
F charge 4 of trafficking in a dangerous drug was laid against D2. There was F
no objection to this additional charge being laid. The Defendant entered
G G
pleas to all the charges he faced, namely two counts of trafficking in
H dangerous drugs, contrary to Sections 4(1)(a) and (3) of the Dangerous H
Drugs Ordinance, Cap. 210, and possession of an offensive weapon,
I I
contrary to Section 17 of the Summary Offences Ordinance, Cap. 228.
J J
6. Facts admitted by the Defendant disclosed that on 1st May,
K K
2010, he telephoned D1, a 16 year old male, and offered him some ‘new
L
stuff’ for his trial. D1 accepted. At 2145 hours that day, D1 arrived at L
M
Room 1229, 12/fl., Chak Tsui House, Wan Tsui Estate, Chai Wan, the M
Defendant’s residence. The Defendant gave D1 the dangerous drugs the
N N
subject matter of count 4, namely 16.10 grammes of a powder containing
O 13.63 grammes of ketamine, after which D1 left, count 4 on the indictment. O
As the police were carrying out an operation at the material time, targeting
P P
the Defendant’s residence, D1 was followed by the police after he left the
Q Defendant’s residence, and he was intercepted and searched, and the drugs Q
were found from him. He was arrested and under caution said he had
R R
purchase the ‘k chai’ earlier from the premises from Hung Mo Man (the
S alias of Cheng Hoi-man, the Defendant herein), for self-consumption. D1 S
appeared before me this morning and entered a plea to possession of
T T
dangerous drugs in respect of these dangerous drugs found on him, and I
U U
V V
由此
- 5 -
A A
B have adjourned his sentence until 29th November, 2010, remanding him in B
custody, and calling for a variety of reports. Subsequently at 2202 hours
C C
when the Defendant left his residence, he was intercepted by police
D officers. He had tried to flee, but was subdued after a short struggle. He D
was carrying a plastic bag containing 9 plastic bags containing a total of
E E
65.90 grammes of a powder containing 52.56 grammes of a ketamine. He
F was arrested and cautioned, and remained silent under caution. This is F
Count 2 on the indictment. When his premises were searched, a 23 inch
G G
machete and a sheath were found underneath a bed in the living room. He
H claimed when interviewed under caution that he was keeping the machete H
temporarily for a friend who had given it to him some days previously.
I I
This is count 3 on the indictment.
J J
7. In the particulars of count 3, the particulars were that he was
K K
in possession of an offensive weapon, the machete, with intent to use it for
L L
an unlawful purpose, namely dealing with a dangerous drugs. Counsel for
M
the Prosecution submitted that there was circumstantial evidence of this M
unlawful purpose – the machete was found in his residence, there was a
N N
large quantity of dangerous drugs, and the only inference to be drawn was
O that it was there to be used, should something go wrong in his drug O
trafficking operation, and he would use it should the need arise. Counsel
P P
for the Defendant confirmed this.
Q Q
8. On the basis of his pleas and admissions, I convicted the
R R
Defendant of the charges he faced in DCCC 566/2010 and DCCC
S 674/2010. S
T T
U U
V V
由此
- 6 -
A A
B 9. After hearing Counsel in mitigation, I adjourned the matter B
until today, and called for a Background Report.
C C
D 10. The Defendant was born on 28th October, 1989. He was 20 D
years old at the time of the offences but he is now aged 21 years old. He has
E E
2 previous convictions, including one for possession of dangerous drugs on
F 16 January, 2009, when he was fined. Counsel for the Defendant asked me F
to consider Training Centre in view of the Defendant’s age. I did not think
G G
it appropriate in view of the nature of the charges that he faced. Also, the
H Defendant had been sentenced to the Training Centre once before, in 2005, H
for offences of burglary.
I I
J 11. I have carefully considered all that has been urged upon me in J
mitigation by Counsel on behalf of the Defendant, as well as the contents
K K
of the Background Report before me. His background is set out in great
L L
detail in the Background report and I do not propose to rehearse the
M
contents again herein. Counsel submitted that at the time of the offence in M
DCCC 566/2010, the Defendant was a ketamine user, but by the time of the
N N
offence in DCCC 674/2010, he was no longer a user. He offended in the
O hope of earning some quick money. O
P P
12. In mitigation, it was said that the Defendant is truly
Q remorseful and is determined to turn over a new leaf. A lenient sentence is Q
therefore sough. His mother is in Court today to show her support for the
R R
Defendant.
S S
T T
U U
V V
由此
- 7 -
A A
B 13. This is not the Defendant’s first conviction. One offence was B
committed whilst on bail for the other, and that must be viewed as an
C C
aggravating feature.
D D
14. Save for his plea of guilty, there is really little else in
E E
mitigation before me.
F F
15. In the Secretary for Justice v Hii Siew Cheng & Anor. [2009]
G G
1 HKLRD 1, the Court of Appeal laid down the tariffs for trafficking in
H ketamine. For trafficking 10 to 50 grammes of ketamine, a term of H
imprisonment of between 4 to 6 years is called for, whilst for a quantity of
I I
50 to 300 grammes, a term of imprisonment of 6 to 9 years is called for.
J J
16. The court has said time and again that there is a need for
K K
deterrence when dealing with offences like trafficking in a dangerous drug,
L L
and that young age carries little weight in mitigation.
M M
17. In the present case, the matters urged upon me cannot detract
N N
from the fact that a deterrent sentence is called for as our society needs to
O get the message that trafficking in a dangerous drug is a very serious O
offence, in particular the trafficking of dangerous drugs to young people.
P P
The only mitigation which is of use here is the defendant’s pleas, and for
Q that, he will be given a one-third discount. Q
R R
18. In DCCC 566/2010, the ketamine involved is 20.71 grammes.
S For this quantity, I consider a starting point of 4 1/2 years, that is 54 S
months, to be appropriate. He is entitled to a discount of one-third – that is
T T
a sentence of 3 years’ imprisonment.
U U
V V
由此
- 8 -
A A
B B
19. In DCCC 674/2010, the ketamine involved in count 2 is 13.63
C C
grammes, whilst that in count 4 is 52.56 grammes. Defence Counsel
D submits that this should be viewed as one lot of dangerous drugs. I do not D
agree – these are separate and distinct offences. On count 2, I take as a
E E
starting point 4 years imprisonment, that is 48 months. He is entitled to a
F discount of one-third – that is 32 months’ imprisonment. On count 3, for F
the offensive of possession of an offensive weapon, I take as a starting
G G
point 9 months’ imprisonment, discount it by one-third for his plea and
H sentence him to 6 months’ imprisonment. On count 4, I take as a starting H
point 6 years’ imprisonment, discount it by one-third to reflect his plea and
I I
sentence him to 4 years’ imprisonment.
J J
20. The offences are all separate and distinct offences and warrant
K K
consecutive sentences. As I have said, DCCC 674/2010 was committed
L L
whilst on bail for DCCC 566/2010, and I view that as an aggravating
M
feature. But I do take into account the totality principle in sentencing. I M
shall order that the sentences in DCCC 674/2010 all be served concurrently,
N N
that is a total of 4 years, imprisonment. 1 year is to be concurrent with the
O sentence in DCCC 566/2010, and the rest consecutive. That is a total of 6 O
years’ imprisonment.
P P
Q Q
R R
（ Bina Chainrai ）
Deputy District Judge
S S
T T
U U
V V