由此
A A
B DCCC 841/2023 B
[2024] HKDC 1131
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO. 841 OF 2023 E
F ____________ F
G G
HKSAR
H
v H
CHEUNG Wing-chiu
I I
____________
J J
Before : H.H. Judge G. Lam
K Date : 4 July 2024 K
Present : Mr. Yaddy Cheung, solicitor on fiat, for HKSAR.
L Mr. Jeff Ho instructed by M/s Lo & Fung, L
assigned by the Director of Legal Aid, for the
M defendant. M
Offences : (1) Trafficking in dangerous drugs（販運危險
N
藥物） N
(2) Driving in excess of speed limit（超速駕駛）
O (3) Failure to produce proof of identity1（沒有遵 O
從要求出示身分證明以供查閱）
P P
Q REASONS FOR SENTENCE Q
R R
The defendant pleaded guilty to a charge of "Trafficking in
S S
dangerous drugs" (Charge 1); a charge of "Speeding" (Charge 2); and a
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1
Contrary to section 49(1) of the Public Order Ordinance (Cap.245).
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由此
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A A
charge of "Failure to produce proof of identity" (Charge 3). The dangerous
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drugs involved are ketamine and cocaine.
C C
D D
Summary of Facts
E E
Charge 2
F F
G 2. About 12:17 p.m. on 20 February 2023, PC 15863 (PW1) and G
H teammates were conducting an anti-speeding operation at Kwai Chung H
I Road northbound. Using a laser gun, PW1 detected the speed of a private I
J
car VE7289 ("the Car") travelling on the 1st lane of Kwai Chung Road to be J
87 km/h (after deducting the technical allowance of 5 km/h). The speed
K K
limit of that road segment was 70 km/h.
L L
M M
Charge 3
N N
3. Sgt 50004 (PW3) intercepted the Car at a police roadblock set
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up near Lamppost KHM186, Kwai Chung Road. The defendant was found
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in the driver's seat; whereas a male surnamed Man, the front passenger seat.
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PW3 asked both of them to alight from the Car. About 12:27 p.m. on the
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same day, PC 10517 (PW4), at the roadblock, asked the defendant to present
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his identity document. He claimed that he had lost it.
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由此
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A A
Charge 1
B B
C 4. PW4 searched the Car at the roadblock in the presence of the C
D defendant. The following items were found :- D
E E
(a) In the storage compartment of the driver's door:
F
a cigarette box containing 4 resealable transparent plastic bags F
which contained a total of 2.37 grammes of a solid containing
G G
2.02 grammes of ketamine (E1);
H H
(b) In the storage compartment of the driver's armrest:
I (i) 8 resealable transparent plastic bags which contained a I
total of 0.92 gramme of a solid containing 0.79 gramme
J J
of cocaine (E2); and
K (ii) a chewing gum packet containing 31 resealable K
transparent plastic bags which contained a total of 4.58
L L
grammes of a solid containing 3.80 grammes of cocaine
M (E3). M
N N
5. At the roadblock, PW4 arrested the defendant for the 3
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offences in the present case.
P P
Q Q
6. In his video recorded interview, the defendant stated that he
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borrowed the Car from a Mr. Poon on 18 February 2023. The defendant
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admitted that the dangerous drugs found in the Car were cocaine; and they
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由此
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A A
belonged to him. The cash (in a total sum of $2,304.50) found in the Car and
B B
on the defendant as well as the 2 mobile phones found also belonged to him.
C C
D D
7. Regarding Charge 1, the defendant now admits that he
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possessed E1 to E3 for the purpose of unlawful trafficking.
F F
G Mitigation & Sentence G
H H
8. The defendant is 46 and has 7 conviction records, which
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included 1 "simple possession" offence and 4 driving-related offences.
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Defence counsel Mr. Ho informed me that the defendant is divorced with 2
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children (aged 17 and 12). He resides with his mother (aged 82). The
L defendant was a construction worker earning about $28,000 per month. In L
M mitigation, Mr. Ho submitted that the defendant's last conviction is dated M
N November 2011, which shows that he has managed to remain trouble free N
for quite some time. Furthermore, the defendant has no record of
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"trafficking"; this is his first time and he promises not to re-offend.
P P
Q Q
9. Drug abuse has always been a problem in our society. A clear
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message must be conveyed to the general public that "drug trafficking" is a
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serious crime and that drug traffickers (even fresh offenders) would most
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由此
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certainly be punished by long-term imprisonment, so that there is a deterrent
B B
effect.
C C
D D
10. The Court of Appeal has laid down clear sentencing guidelines
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for trafficking in ketamine (see SJ v Hii Siew Cheng [2009] 1 HKLRD 1)
F F
and cocaine (see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69
G and The Queen v Lau Tak Ming & others [1990] 2 HKLR 370). For up to 10 G
H grammes of ketamine, the sentence ranges from 2 to 4 years' imprisonment. H
I For up to 10 grammes of cocaine, it ranges from 2 to 5 years' imprisonment. I
J J
11. In determining the proper starting point for Charge 1, I have
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reminded myself of the sentencing principles for trafficking in cocktail
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drugs stated in HKSAR v Yip Wai Yin & another CACC 80/2003 and HKSAR
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v Cheng Yat Ming CACC 455/2006.
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12. In the present case, the defendant trafficked in a cocktail of
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drugs consisting of 2.02 grammes of ketamine and 4.59 grammes of cocaine.
Q For 2.02 grammes of ketamine, applying a strict arithmetical approach, the Q
R appropriate starting point is 27 months' imprisonment. For 4.59 grammes of R
S
cocaine, applying a strict arithmetical approach, the appropriate starting S
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由此
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A A
point is 41 months' imprisonment. I consider the "combined approach"
B B
would arrive at a realistic and fair sentence.
C C
D D
13. In terms of potency, 4.59 grammes of cocaine should form the
E E
basis of the starting point. Hence, I adopt a starting point of 41 months'
F F
imprisonment and adjust it upward by 4 months for the ketamine, arriving at
G 45 months. With the timely guilty plea, the sentence is reduced to 30 G
H months. Apart from this, I see no other mitigating factors which warrant H
I any further reduction. I sentence the defendant to 30 months' imprisonment I
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for Charge 1. J
K K
14. For Charge 2, the defendant drove the Car at 87 km/h when the
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speed limit was 70 km/h. He exceeded the speed limit by more than 15 km/h.
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If caught at speeding by a laser gun, the driver would normally be issued a
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fixed penalty ticket for $4502. This is exactly what the defendant did. I will
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fine him $450 for this charge.
P P
Q 15. For Charge 3, I do not understand why the defendant was Q
R charged under the Public Order Ordinance instead of the Immigration R
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2
See Schedule, Fixed Penalty (Criminal Proceedings) Ordinance (Cap.240).
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由此
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A A
Ordinance3, which only carries a maximum fine of $5,000. He did not
B B
deliberately refuse to produce his identity card; he simply did not have it
C C
with him. Charging the defendant under the Public Order Ordinance seems
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to be out of proportion. I will fine him $500 for this charge.
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F F
16. For the fines in respect of Charges 2 and 3, I understand that the
G defendant has sufficient cash in his prisoner's parcel. I will allow him 1 G
H month to pay, which should be sufficient time for him to go through the H
I formalities with the assistance of his welfare officer. I
J J
K K
(G. Lam)
L L
District Judge
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T T
3
Contrary to section 17C(3) of Cap.115.
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