由此
A A
B B
DCCC 674/2010
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO. 674 OF 2010 E
--------------------
F F
HKSAR
G G
against
H
1. TSUI Wai-kit H
2. CHENG Hoi-man
I I
--------------------
J J
Coram: Deputy District Judge Chainrai
K K
Date: 8th November 2010
L Present: Mr. Wong Chun Hin, Derek, Public Prosecutor, of the L
Department of Justice, for HKSAR
M M
Mr. Cheng Hoi Man of M/S. Paul Kwong & Co. for the
N Defendant N
Offence: (1) Possession of a dangerous drugs
O O
(管有危險藥物)
P (2) & (4) Trafficking in a dangerous drug P
(販運危險藥物)
Q Q
(3) Possession of offensive weapon
R R
(管有攻擊性武器)
S S
T T
U U
V V
由此
- 2 -
A A
B REASONS FOR SENTENCE B
C C
1． The Defendant appeared before me on 22nd October, 2010 in
D respect of DCCC 566/2010. The Defendant himself had written to the D
Court by letter dated 6th September, 2010 of his intention to plead guilty in
E E
respect of another matter that had been set down for trial on 26 th
F November, 2010, namely DCCC 674/2010. When informed of this by the F
Court, Counsel for the Defendant sought an adjournment to confirm this
G G
intention with the Defendant, and to take instructions to represent the
H Defendant in DCCC 674/2010. I granted the application for an H
adjournments, and directed that both matters be brought up for plea on 25th
I I
October, 2010.
J J
2. When the matter resumed before me on 25th October, 2010,
K K
the Defendant pleaded guilty to the charges he faced in both matters.
L L
DCCC 566/2010
M M
N 3. The Defendant pleaded guilty to one count of trafficking in N
dangerous drugs, namely 24.48 grammes of a powder containing 20.71
O O
grammes of ketamine, contrary to Sections 4(1)(a) and (3) of the
P P
dangerous Drugs Ordinance, Cap. 210.
Q Q
th
4. Facts admitted by the Defendant disclosed that on 15 March,
R R
2010, police officers intercepted the Defendant outside Shop F17, Wan
S
Tsui Estate Shopping Centre. Chai Wan. He was escorted to his home at S
Room 1229, Chak Tsui House, Wan Tsui Estate, Wan Tsui Road, Chai
T T
Wan for home search under a search warrant. Upon search, the dangerous
U U
V V
由此
- 3 -
A A
B drugs the subject matter of the charge were found from one of the drawers B
of a plastic cabinet inside the premises. He was arrested for the offence of
C C
trafficking in dangerous drugs, and admitted under caution that the
D dangerous drugs found was ketamine, and were for his own consumption. D
When interviewed under caution subsequently, he said he had purchased
E E
the drugs for $1,500 from a male in a bar in Tsim Sha Tsui and had kept
F them inside the drawer without consuming any of it. F
G G
DCCC 674/2010
H H
5. The Defendant herein was D2 on the indictment. At the outset,
I I
th
the Defendant faced 2 counts on the indictment dated 29 July, 2010,
J namely count 2 of trafficking in dangerous drugs, namely 65.90 grammes J
of a powder containing 52.56 grammes of ketamine, contrary to Sections
K K
4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 210 and Count 3
L L
of possession of an offensive weapon, contrary to Section 17 of the
M
Summary Offences Ordinance, Cap. 228. D1 on the indictment faced M
Count 1 of possession of dangerous drugs, namely 16.10 grammes of a
N N
powder containing 13.63 grammes of ketamine. At the first hearing on 30th
O July, 2010, before His Honour Judge Stanley Chan, D1 indicated his O
intention to plead guilty, whilst D2, the Defendant herein, indicated his
P P
intention to plead not guilty, and the matter was set down for trial on 26th
Q November, 2010. D1 entered his plea of guilty to count 1 on 25th July, 2010 Q
and was convicted of that charge by His Honour Judge D. Yau. As D1
R R
indicated that he would testify for the prosecution against D2, his sentence
S was adjourned until the conclusion of the trial of D2. D2 indicated by his S
letter dated 6th September, 2010 to the Court that he wished for DCCC
T T
674/2010 to be dealt with together with DCCC 566/2010 which had been
U U
V V
由此
- 4 -
A A
B set down for trial on 22 nd October, 2010, and it was his intention to plead B
guilty to both matters. As a result of D1 being willing to testify that he had
C C
bought the drugs in question from D2, the Prosecution decided to
D prosecute D2 for trafficking in the dangerous drugs that were sold to D1. D
On 25th October, 2010, the Prosecution initially sought to amend charge 1
E E
on the indictment (a count of possession of dangerous drugs against D1
F only) to a count of trafficking in dangerous drugs in respect of the same F
drugs against D2 (re-amended indictment dated 21st October, 2010).
G G
However, after discussion between Counsel for the Prosecution and the
H Defence, the Prosecution sought leave to amend the indictment H
(re-amended indictment dated 25th October, 2010) and the additional
I I
charge 4 of trafficking in a dangerous drug was laid against D2. There was
J no objection to this additional charge being laid. The Defendant entered J
pleas to all the charges he faced, namely two counts of trafficking in
K K
dangerous drugs, contrary to Sections 4(1)(a) and (3) of the Dangerous
L L
Drugs Ordinance, Cap. 210, and possession of an offensive weapon,
M
contrary to Section 17 of the Summary Offences Ordinance, Cap. 228. M
N N
6. Facts admitted by the Defendant disclosed that on 1st May,
O 2010, he telephoned D1, a 16 year old male, and offered him some ‘new O
stuff’ for his trial. D1 accepted. At 2145 hours that day, D1 arrived at
P P
Room 1229, 12/fl., Chak Tsui House, Wan Tsui Estate, Chai Wan, the
Q Defendant’s residence. The Defendant gave D1 the dangerous drugs the Q
subject matter of count 4, namely 16.10 grammes of a powder containing
R R
13.63 grammes of ketamine, after which D1 left, count 4 on the indictment.
S As the police were carrying out an operation at the material time, targeting S
the Defendant’s residence, D1 was followed by the police after he left the
T T
Defendant’s residence, and he was intercepted and searched, and the drugs
U U
V V
由此
- 5 -
A A
B were found from him. He was arrested and under caution said he had B
purchase the ‘k chai’ earlier from the premises from Hung Mo Man (the
C C
alias of Cheng Hoi-man, the Defendant herein), for self-consumption. D1
D appeared before me this morning and entered a plea to possession of D
dangerous drugs in respect of these dangerous drugs found on him, and I
E E
th
have adjourned his sentence until 29 November, 2010, remanding him in
F custody, and calling for a variety of reports. Subsequently at 2202 hours F
when the Defendant left his residence, he was intercepted by police
G G
officers. He had tried to flee, but was subdued after a short struggle. He
H was carrying a plastic bag containing 9 plastic bags containing a total of H
65.90 grammes of a powder containing 52.56 grammes of a ketamine. He
I I
was arrested and cautioned, and remained silent under caution. This is
J Count 2 on the indictment. When his premises were searched, a 23 inch J
machete and a sheath were found underneath a bed in the living room. He
K K
claimed when interviewed under caution that he was keeping the machete
L L
temporarily for a friend who had given it to him some days previously.
M
This is count 3 on the indictment. M
N N
7. In the particulars of count 3, the particulars were that he was
O in possession of an offensive weapon, the machete, with intent to use it for O
an unlawful purpose, namely dealing with a dangerous drugs. Counsel for
P P
the Prosecution submitted that there was circumstantial evidence of this
Q unlawful purpose – the machete was found in his residence, there was a Q
large quantity of dangerous drugs, and the only inference to be drawn was
R R
that it was there to be used, should something go wrong in his drug
S trafficking operation, and he would use it should the need arise. Counsel S
for the Defendant confirmed this.
T T
U U
V V
由此
- 6 -
A A
B 8. On the basis of his pleas and admissions, I convicted the B
Defendant of the charges he faced in DCCC 566/2010 and DCCC
C C
674/2010.
D D
9. After hearing Counsel in mitigation, I adjourned the matter
E E
until today, and called for a Background Report.
F F
10. The Defendant was born on 28th October, 1989. He was 20
G G
years old at the time of the offences but he is now aged 21 years old. He has
H 2 previous convictions, including one for possession of dangerous drugs on H
16 January, 2009, when he was fined. Counsel for the Defendant asked me
I I
to consider Training Centre in view of the Defendant’s age. I did not think
J it appropriate in view of the nature of the charges that he faced. Also, the J
Defendant had been sentenced to the Training Centre once before, in 2005,
K K
for offences of burglary.
L L
M
11. I have carefully considered all that has been urged upon me in M
mitigation by Counsel on behalf of the Defendant, as well as the contents
N N
of the Background Report before me. His background is set out in great
O detail in the Background report and I do not propose to rehearse the O
contents again herein. Counsel submitted that at the time of the offence in
P P
DCCC 566/2010, the Defendant was a ketamine user, but by the time of the
Q offence in DCCC 674/2010, he was no longer a user. He offended in the Q
hope of earning some quick money.
R R
S 12. In mitigation, it was said that the Defendant is truly S
remorseful and is determined to turn over a new leaf. A lenient sentence is
T T
U U
V V
由此
- 7 -
A A
B therefore sough. His mother is in Court today to show her support for the B
Defendant.
C C
D 13. This is not the Defendant’s first conviction. One offence was D
committed whilst on bail for the other, and that must be viewed as an
E E
aggravating feature.
F F
14. Save for his plea of guilty, there is really little else in
G G
mitigation before me.
H H
15. In the Secretary for Justice v Hii Siew Cheng & Anor. [2009]
I I
1 HKLRD 1, the Court of Appeal laid down the tariffs for trafficking in
J ketamine. For trafficking 10 to 50 grammes of ketamine, a term of J
imprisonment of between 4 to 6 years is called for, whilst for a quantity of
K K
50 to 300 grammes, a term of imprisonment of 6 to 9 years is called for.
L L
M
16. The court has said time and again that there is a need for M
deterrence when dealing with offences like trafficking in a dangerous drug,
N N
and that young age carries little weight in mitigation.
O O
17. In the present case, the matters urged upon me cannot detract
P P
from the fact that a deterrent sentence is called for as our society needs to
Q get the message that trafficking in a dangerous drug is a very serious Q
offence, in particular the trafficking of dangerous drugs to young people.
R R
The only mitigation which is of use here is the defendant’s pleas, and for
S that, he will be given a one-third discount. S
T T
U U
V V
由此
- 8 -
A A
B 18. In DCCC 566/2010, the ketamine involved is 20.71 grammes. B
For this quantity, I consider a starting point of 4 1/2 years, that is 54
C C
months, to be appropriate. He is entitled to a discount of one-third – that is
D a sentence of 3 years’ imprisonment. D
E E
19. In DCCC 674/2010, the ketamine involved in count 2 is 13.63
F grammes, whilst that in count 4 is 52.56 grammes. Defence Counsel F
submits that this should be viewed as one lot of dangerous drugs. I do not
G G
agree – these are separate and distinct offences. On count 2, I take as a
H starting point 4 years imprisonment, that is 48 months. He is entitled to a H
discount of one-third – that is 32 months’ imprisonment. On count 3, for
I I
the offensive of possession of an offensive weapon, I take as a starting
J point 9 months’ imprisonment, discount it by one-third for his plea and J
sentence him to 6 months’ imprisonment. On count 4, I take as a starting
K K
point 6 years’ imprisonment, discount it by one-third to reflect his plea and
L
sentence him to 4 years’ imprisonment. L
M M
20. The offences are all separate and distinct offences and warrant
N N
consecutive sentences. As I have said, DCCC 674/2010 was committed
O whilst on bail for DCCC 566/2010, and I view that as an aggravating O
feature. But I do take into account the totality principle in sentencing. I
P P
shall order that the sentences in DCCC 674/2010 all be served concurrently,
Q that is a total of 4 years, imprisonment. 1 year is to be concurrent with the Q
sentence in DCCC 566/2010, and the rest consecutive. That is a total of 6
R R
years’ imprisonment.
S S
（ Bina Chainrai ）
T Deputy District Judge T
U U
V V
DCCC674/2010 HKSAR v. TSUI WAI KIT AND ANOTHER - LawHero
由此
A A
B B
DCCC 674/2010
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO. 674 OF 2010 E
--------------------
F F
HKSAR
G G
against
H
1. TSUI Wai-kit H
2. CHENG Hoi-man
I I
--------------------
J J
Coram: Deputy District Judge Chainrai
K K
Date: 8th November 2010
L Present: Mr. Wong Chun Hin, Derek, Public Prosecutor, of the L
Department of Justice, for HKSAR
M M
Mr. Cheng Hoi Man of M/S. Paul Kwong & Co. for the
N Defendant N
Offence: (1) Possession of a dangerous drugs
O O
(管有危險藥物)
P (2) & (4) Trafficking in a dangerous drug P
(販運危險藥物)
Q Q
(3) Possession of offensive weapon
R R
(管有攻擊性武器)
S S
T T
U U
V V
由此
- 2 -
A A
B REASONS FOR SENTENCE B
C C
1． The Defendant appeared before me on 22nd October, 2010 in
D respect of DCCC 566/2010. The Defendant himself had written to the D
Court by letter dated 6th September, 2010 of his intention to plead guilty in
E E
respect of another matter that had been set down for trial on 26 th
F November, 2010, namely DCCC 674/2010. When informed of this by the F
Court, Counsel for the Defendant sought an adjournment to confirm this
G G
intention with the Defendant, and to take instructions to represent the
H Defendant in DCCC 674/2010. I granted the application for an H
adjournments, and directed that both matters be brought up for plea on 25th
I I
October, 2010.
J J
2. When the matter resumed before me on 25th October, 2010,
K K
the Defendant pleaded guilty to the charges he faced in both matters.
L L
DCCC 566/2010
M M
N 3. The Defendant pleaded guilty to one count of trafficking in N
dangerous drugs, namely 24.48 grammes of a powder containing 20.71
O O
grammes of ketamine, contrary to Sections 4(1)(a) and (3) of the
P P
dangerous Drugs Ordinance, Cap. 210.
Q Q
th
4. Facts admitted by the Defendant disclosed that on 15 March,
R R
2010, police officers intercepted the Defendant outside Shop F17, Wan
S
Tsui Estate Shopping Centre. Chai Wan. He was escorted to his home at S
Room 1229, Chak Tsui House, Wan Tsui Estate, Wan Tsui Road, Chai
T T
Wan for home search under a search warrant. Upon search, the dangerous
U U
V V
由此
- 3 -
A A
B drugs the subject matter of the charge were found from one of the drawers B
of a plastic cabinet inside the premises. He was arrested for the offence of
C C
trafficking in dangerous drugs, and admitted under caution that the
D dangerous drugs found was ketamine, and were for his own consumption. D
When interviewed under caution subsequently, he said he had purchased
E E
the drugs for $1,500 from a male in a bar in Tsim Sha Tsui and had kept
F them inside the drawer without consuming any of it. F
G G
DCCC 674/2010
H H
5. The Defendant herein was D2 on the indictment. At the outset,
I I
th
the Defendant faced 2 counts on the indictment dated 29 July, 2010,
J namely count 2 of trafficking in dangerous drugs, namely 65.90 grammes J
of a powder containing 52.56 grammes of ketamine, contrary to Sections
K K
4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 210 and Count 3
L L
of possession of an offensive weapon, contrary to Section 17 of the
M
Summary Offences Ordinance, Cap. 228. D1 on the indictment faced M
Count 1 of possession of dangerous drugs, namely 16.10 grammes of a
N N
powder containing 13.63 grammes of ketamine. At the first hearing on 30th
O July, 2010, before His Honour Judge Stanley Chan, D1 indicated his O
intention to plead guilty, whilst D2, the Defendant herein, indicated his
P P
intention to plead not guilty, and the matter was set down for trial on 26th
Q November, 2010. D1 entered his plea of guilty to count 1 on 25th July, 2010 Q
and was convicted of that charge by His Honour Judge D. Yau. As D1
R R
indicated that he would testify for the prosecution against D2, his sentence
S was adjourned until the conclusion of the trial of D2. D2 indicated by his S
letter dated 6th September, 2010 to the Court that he wished for DCCC
T T
674/2010 to be dealt with together with DCCC 566/2010 which had been
U U
V V
由此
- 4 -
A A
B set down for trial on 22 nd October, 2010, and it was his intention to plead B
guilty to both matters. As a result of D1 being willing to testify that he had
C C
bought the drugs in question from D2, the Prosecution decided to
D prosecute D2 for trafficking in the dangerous drugs that were sold to D1. D
On 25th October, 2010, the Prosecution initially sought to amend charge 1
E E
on the indictment (a count of possession of dangerous drugs against D1
F only) to a count of trafficking in dangerous drugs in respect of the same F
drugs against D2 (re-amended indictment dated 21st October, 2010).
G G
However, after discussion between Counsel for the Prosecution and the
H Defence, the Prosecution sought leave to amend the indictment H
(re-amended indictment dated 25th October, 2010) and the additional
I I
charge 4 of trafficking in a dangerous drug was laid against D2. There was
J no objection to this additional charge being laid. The Defendant entered J
pleas to all the charges he faced, namely two counts of trafficking in
K K
dangerous drugs, contrary to Sections 4(1)(a) and (3) of the Dangerous
L L
Drugs Ordinance, Cap. 210, and possession of an offensive weapon,
M
contrary to Section 17 of the Summary Offences Ordinance, Cap. 228. M
N N
6. Facts admitted by the Defendant disclosed that on 1st May,
O 2010, he telephoned D1, a 16 year old male, and offered him some ‘new O
stuff’ for his trial. D1 accepted. At 2145 hours that day, D1 arrived at
P P
Room 1229, 12/fl., Chak Tsui House, Wan Tsui Estate, Chai Wan, the
Q Defendant’s residence. The Defendant gave D1 the dangerous drugs the Q
subject matter of count 4, namely 16.10 grammes of a powder containing
R R
13.63 grammes of ketamine, after which D1 left, count 4 on the indictment.
S As the police were carrying out an operation at the material time, targeting S
the Defendant’s residence, D1 was followed by the police after he left the
T T
Defendant’s residence, and he was intercepted and searched, and the drugs
U U
V V
由此
- 5 -
A A
B were found from him. He was arrested and under caution said he had B
purchase the ‘k chai’ earlier from the premises from Hung Mo Man (the
C C
alias of Cheng Hoi-man, the Defendant herein), for self-consumption. D1
D appeared before me this morning and entered a plea to possession of D
dangerous drugs in respect of these dangerous drugs found on him, and I
E E
th
have adjourned his sentence until 29 November, 2010, remanding him in
F custody, and calling for a variety of reports. Subsequently at 2202 hours F
when the Defendant left his residence, he was intercepted by police
G G
officers. He had tried to flee, but was subdued after a short struggle. He
H was carrying a plastic bag containing 9 plastic bags containing a total of H
65.90 grammes of a powder containing 52.56 grammes of a ketamine. He
I I
was arrested and cautioned, and remained silent under caution. This is
J Count 2 on the indictment. When his premises were searched, a 23 inch J
machete and a sheath were found underneath a bed in the living room. He
K K
claimed when interviewed under caution that he was keeping the machete
L L
temporarily for a friend who had given it to him some days previously.
M
This is count 3 on the indictment. M
N N
7. In the particulars of count 3, the particulars were that he was
O in possession of an offensive weapon, the machete, with intent to use it for O
an unlawful purpose, namely dealing with a dangerous drugs. Counsel for
P P
the Prosecution submitted that there was circumstantial evidence of this
Q unlawful purpose – the machete was found in his residence, there was a Q
large quantity of dangerous drugs, and the only inference to be drawn was
R R
that it was there to be used, should something go wrong in his drug
S trafficking operation, and he would use it should the need arise. Counsel S
for the Defendant confirmed this.
T T
U U
V V
由此
- 6 -
A A
B 8. On the basis of his pleas and admissions, I convicted the B
Defendant of the charges he faced in DCCC 566/2010 and DCCC
C C
674/2010.
D D
9. After hearing Counsel in mitigation, I adjourned the matter
E E
until today, and called for a Background Report.
F F
10. The Defendant was born on 28th October, 1989. He was 20
G G
years old at the time of the offences but he is now aged 21 years old. He has
H 2 previous convictions, including one for possession of dangerous drugs on H
16 January, 2009, when he was fined. Counsel for the Defendant asked me
I I
to consider Training Centre in view of the Defendant’s age. I did not think
J it appropriate in view of the nature of the charges that he faced. Also, the J
Defendant had been sentenced to the Training Centre once before, in 2005,
K K
for offences of burglary.
L L
M
11. I have carefully considered all that has been urged upon me in M
mitigation by Counsel on behalf of the Defendant, as well as the contents
N N
of the Background Report before me. His background is set out in great
O detail in the Background report and I do not propose to rehearse the O
contents again herein. Counsel submitted that at the time of the offence in
P P
DCCC 566/2010, the Defendant was a ketamine user, but by the time of the
Q offence in DCCC 674/2010, he was no longer a user. He offended in the Q
hope of earning some quick money.
R R
S 12. In mitigation, it was said that the Defendant is truly S
remorseful and is determined to turn over a new leaf. A lenient sentence is
T T
U U
V V
由此
- 7 -
A A
B therefore sough. His mother is in Court today to show her support for the B
Defendant.
C C
D 13. This is not the Defendant’s first conviction. One offence was D
committed whilst on bail for the other, and that must be viewed as an
E E
aggravating feature.
F F
14. Save for his plea of guilty, there is really little else in
G G
mitigation before me.
H H
15. In the Secretary for Justice v Hii Siew Cheng & Anor. [2009]
I I
1 HKLRD 1, the Court of Appeal laid down the tariffs for trafficking in
J ketamine. For trafficking 10 to 50 grammes of ketamine, a term of J
imprisonment of between 4 to 6 years is called for, whilst for a quantity of
K K
50 to 300 grammes, a term of imprisonment of 6 to 9 years is called for.
L L
M
16. The court has said time and again that there is a need for M
deterrence when dealing with offences like trafficking in a dangerous drug,
N N
and that young age carries little weight in mitigation.
O O
17. In the present case, the matters urged upon me cannot detract
P P
from the fact that a deterrent sentence is called for as our society needs to
Q get the message that trafficking in a dangerous drug is a very serious Q
offence, in particular the trafficking of dangerous drugs to young people.
R R
The only mitigation which is of use here is the defendant’s pleas, and for
S that, he will be given a one-third discount. S
T T
U U
V V
由此
- 8 -
A A
B 18. In DCCC 566/2010, the ketamine involved is 20.71 grammes. B
For this quantity, I consider a starting point of 4 1/2 years, that is 54
C C
months, to be appropriate. He is entitled to a discount of one-third – that is
D a sentence of 3 years’ imprisonment. D
E E
19. In DCCC 674/2010, the ketamine involved in count 2 is 13.63
F grammes, whilst that in count 4 is 52.56 grammes. Defence Counsel F
submits that this should be viewed as one lot of dangerous drugs. I do not
G G
agree – these are separate and distinct offences. On count 2, I take as a
H starting point 4 years imprisonment, that is 48 months. He is entitled to a H
discount of one-third – that is 32 months’ imprisonment. On count 3, for
I I
the offensive of possession of an offensive weapon, I take as a starting
J point 9 months’ imprisonment, discount it by one-third for his plea and J
sentence him to 6 months’ imprisonment. On count 4, I take as a starting
K K
point 6 years’ imprisonment, discount it by one-third to reflect his plea and
L
sentence him to 4 years’ imprisonment. L
M M
20. The offences are all separate and distinct offences and warrant
N N
consecutive sentences. As I have said, DCCC 674/2010 was committed
O whilst on bail for DCCC 566/2010, and I view that as an aggravating O
feature. But I do take into account the totality principle in sentencing. I
P P
shall order that the sentences in DCCC 674/2010 all be served concurrently,
Q that is a total of 4 years, imprisonment. 1 year is to be concurrent with the Q
sentence in DCCC 566/2010, and the rest consecutive. That is a total of 6
R R
years’ imprisonment.
S S
（ Bina Chainrai ）
T Deputy District Judge T
U U
V V