DCCC122/2015 HKSAR v. CHEONG CHUN YIU, JEFFREY - LawHero
DCCC122/2015
區域法院（刑事）HH Judge Douglas T.H. Yau23/4/2015
DCCC122/2015
A A
B DCCC 122/2015 B
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO. 122 OF 2015
E E
-----------------------------------
F HKSAR F
v.
G G
CHEONG CHUN YIU, JEFFREY
-----------------------------------
H H
Before: HH Judge Douglas T.H. Yau
I Date: 24th April 2015 at 10:55 am I
Present: Ms. Louisa Lai, Solicitor on fiat, for HKSAR
J J
Mr. Keith Fung instructed by M/s Ip Kwan & Co,
K K
assigned by DLA, for the Defendant
L
Offence: Trafficking in dangerous drugs (販運危險藥物) L
----------------------------
M M
Reasons for Sentence
N ---------------------------- N
1. The defendant pleaded guilty to one charge of trafficking in
O O
dangerous drugs, contrary to s.4(1)(a) and (3) of the Dangerous
P Drugs Ordinance, Cap.134. Particulars are that he on 7th December P
2014 unlawfully trafficked in 129g of a powder containing 61.2g of
Q Q
ketamine and 1.48g of a solid containing 0.61g of cocaine.
R R
Summary of facts
S S
2. While on anti-narcotics operation on 7th December 2014, at a few
T minutes past 9 pm, Police officers saw a white private vehicle T
(HC9910) stopped on an unnamed road near Ng Uk Tsuen in Yuen
U U
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- 2 -
A A
B Long. The defendant was seen getting out of the vehicle and B
walking to a bush near a firebox, picking up a red recycled bag. The
C C
defendant looked into the bag and put his hand inside. That was
D when Police officers went up to intercept him. D
E E
3. Upon search, the defendant was found to be carrying a red plastic
F
bag containing 10 transparent re-sealable bags containing some F
white substance; 7 transparent re-sealable bags with yellow solids;
G G
and a pile of smaller re-sealable bags in another transparent bag.
H
The defendant also had two mobile phones and two SIM cards in H
his right jacket pocket, together with $5,200 cash in his left front
I I
trousers pocket. The defendant remained silent under caution.
J J
4. In a video recorded interview the following day, the defendant said
K K
that the white and yellow substance were ketamine and cocaine
L respectively and that they all belonged to him for his own L
consumption. The defendant said that he bought the drugs from one
M M
Ah B in Yuen Long for about $8,000 at around noon on the day
N before his arrest. He had hidden the drugs at the scene of arrest to N
avoid being caught by the Police. The defendant also claimed that
O O
since he did not hold a driving licence, he asked a friend of his to
P drive him to Ng Uk Tsuen using a borrowed car. The defendant was P
unemployed and was not receiving any government assistance.
Q Q
5. Government Chemist later confirmed that the 10 transparent bags
R R
contained a total of 129g of a powder containing 6.12g of ketamine,
S S
and the 7 transparent bag contained a total of 1.48g of a solid
T
containing 0.61g of cocaine. The estimated street value of the T
ketamine and the cocaine is $18,447 and $1,416 respectively.
U U
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A A
B B
Previous convictions
C C
6. The defendant has 7 convictions with one relating to dangerous
D drugs. The defendant was sentenced to the drug addiction treatment D
centre in 2013 for the possession of dangerous drugs. It would
E E
appear that the defendant committed the present offence not too
F long after his release from the 2013 convictions. He was sentenced F
to the DATC again in December 2014 for wounding under s.19 of
G G
the Offences Against the Person Ordinance, Cap.212, with the latest
H date of discharge being 21st December 2015. H
I Mitigation I
J 7. The defendant is 20 years old and will turn 21 on 24th June. The J
defendant’s parents are divorced and he lives with his father and
K K
sister. Around the time of the commission of the offence, the
L defendant allegedly worked as a casual worker in surveying work at L
construction sites, earning about $20,000 a month. The defendant is
M M
however unable to give the full name of his employer to his counsel,
N nor is he able to produce any proof of employment, such as wage N
receipts.
O O
P 8. Mr. Fung informed the court that the social workers who are P
handling the defendant’s case are of the view that the defendant is a
Q Q
young man who stands a chance of rehabilitation. They are in court,
R on their own time, to show their support. R
S S
T T
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A A
B 9. Given the large quantity of ketamine and the small quantity of B
cocaine that we are dealing with, Mr. Fung suggests a combined
C C
approach with a slight adjustment when sentencing the defendant.
D D
10. It is Mr. Fung’s submission that the defendant claims that a quarter
E E
of the ketamine was for the defendant’s self-consumption.
F F
Sentencing tariff
G G
11. Sentencing tariff for trafficking in heroin as set down in R v Lau
H Tak-ming [1990] 2 HKLR 370 was held to apply to trafficking in H
cocaine as well in the case of Attorney General v Pedro Nel Rojas
I I
[1994] 1 HKC 342. The tariff sentence for trafficking in cocaine of
J a quantity of up to 10 grammes is that of 2 to 5 years’ J
imprisonment.
K K
L 12. Sentencing tariff for trafficking in ketamine is set down in the case L
of Secretary for Justice v Hii Siew Cheng (許守城) [2009] 1
M M
HKLRD 1, CAAR7/2006. The tariff sentence for trafficking in
N N
ketamine of 50 to 300 grammes is 6 to 9 years’ imprisonment.
O O
13. There are two different drugs involved in the present case. However,
P P
given the small quantity of cocaine involved and the relatively large
Q quantity of ketamine involved, I find that the sentence should be Q
based mostly on the ketamine, with a slight adjustment for the
R R
relatively insignificant quantity of cocaine.
S S
14. Trafficking in dangerous drugs is an excepted offence and as such
T s.109A of the Criminal Procedure Ordinance, Cap.221 does not T
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- 5 -
A A
B apply and imprisonment need not be the last resort when sentencing B
the defendant who is below 21 years old. In any event, given the
C C
large quantity of drugs involved, I find that an immediate custodial
D sentence is the only appropriate sentence. D
E E
Self-consumption
F 15. In the case of HKSAR v Wong Suet Hau, CACC 366/2000, the F
Court of Appeal gave guidance on how to deal with situations
G G
where it is suggested in mitigation that ‘a significant proportion of
H the drugs was intended for’ self-consumption and not for H
trafficking. I must look with the greatest care at all the surrounding
I I
circumstances in order to decide whether or not to accept the
J defendant’s contention that one quarter of the ketamine was for his J
self-consumption.
K K
L 16. The quantity of the powder found was 129 grammes, with a street L
value of $18,447. The ketamine (white substance in paragraph 2 of
M M
the summary of facts) were contained in 10 transparent re-sealable
N bags, together with a pile of smaller re-sealable bags. The drugs N
were not found at a residential address but some 8.5 km away from
O O
the defendant’s home in Mai Po Tsuen. The drugs were hidden near
P a firebox on an unnamed road, a public place, where the defendant P
was driven by someone else to pick up. There was no presence of
Q Q
paraphernalia associated with drug consumption found on the
R R
defendant. There is evidence that the defendant is a drug addict
S
given his admission to the DATC. The defendant did say that all the S
drugs were for his self-consumption in the video recorded
T T
interview.
U U
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A A
B B
17. Although the defendant claims that he was working and earning
C $20,000 a month at the time, it contradicts what he had told Police C
earlier in his antecedent statement. The defendant was not able to
D D
come up with the name of his employer nor any wage receipts. The
E E
defendant is educated up to form 5 level with a conviction record.
F
At the time of the present offence, he would have been released F
from the DATC not too long ago. I find it inherently improbable
G G
that he would have been able to secure employment earning
H
$20,000 a month as a casual worker doing surveying work at H
construction sites.
I I
J 18. Even if it is accepted that one quarter of the ketamine was for the J
defendant’s self-consumption, which would be 15.3g of ketamine
K K
(with 45.9g of Ketamine being for trafficking which would attract a
L starting point of 69 months) the possession of the 15.3g of ketamine L
would also carry a sentence. For that amount and with the
M M
defendant’s conviction history, I would have adopted a starting
N point of 12 months’ imprisonment for the possession of the 15.3g of N
ketamine. The total sentence after accepting that one quarter of the
O O
ketamine was for the defendant’s self-consumption would then be
P 81 month’s imprisonment, which is actually higher than if the full P
amount of Ketamine was taken to be for trafficking.
Q Q
19. Nevertheless, after careful consideration of all the circumstances as
R R
mentioned above, I find that I cannot accept the defendant’s
S S
contention that one quarter of the ketamine was for his
T
self-consumption. T
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A A
B Sentence B
20. On that basis, applying the guidelines, I adopt a starting point of 75
C C
months’ imprisonment for the charge. In adopting this starting
D D
point, I have already taken into account the small amount of
E
cocaine. E
F F
21. I find that there are no aggravating or mitigating circumstances
G
other than the defendant’s guilty plea to warrant an adjustment to G
this sentence.
H H
I 22. The defendant is therefore sentenced to 50 months’ imprisonment I
after plea.
J J
Effect of imprisonment on the defendant’s present DATC
K K
order
L 23. Pursuant to section 6A(1)(b) of the Drug Addiction Treatment L
Centres Ordinance, Cap.244, since the defendant has been
M M
sentenced to a term of imprisonment of more than 9 months, his
N DATC detention order imposed on 22 December 2014 in N
TM/2321/14 shall cease to have effect.
O O
P P
Q Q
R (Douglas T.H .Yau) R
District Judge
S S
T T
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CRT21/24.4.2015 DCCC122/2015/Reasons for Sentence
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A A
B DCCC 122/2015 B
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO. 122 OF 2015
E E
-----------------------------------
F HKSAR F
v.
G G
CHEONG CHUN YIU, JEFFREY
-----------------------------------
H H
Before: HH Judge Douglas T.H. Yau
I Date: 24th April 2015 at 10:55 am I
Present: Ms. Louisa Lai, Solicitor on fiat, for HKSAR
J J
Mr. Keith Fung instructed by M/s Ip Kwan & Co,
K K
assigned by DLA, for the Defendant
L
Offence: Trafficking in dangerous drugs (販運危險藥物) L
----------------------------
M M
Reasons for Sentence
N ---------------------------- N
1. The defendant pleaded guilty to one charge of trafficking in
O O
dangerous drugs, contrary to s.4(1)(a) and (3) of the Dangerous
P Drugs Ordinance, Cap.134. Particulars are that he on 7th December P
2014 unlawfully trafficked in 129g of a powder containing 61.2g of
Q Q
ketamine and 1.48g of a solid containing 0.61g of cocaine.
R R
Summary of facts
S S
2. While on anti-narcotics operation on 7th December 2014, at a few
T minutes past 9 pm, Police officers saw a white private vehicle T
(HC9910) stopped on an unnamed road near Ng Uk Tsuen in Yuen
U U
CRT21/24.4.2015 DCCC122/2015/Reasons for Sentence
V V
- 2 -
A A
B Long. The defendant was seen getting out of the vehicle and B
walking to a bush near a firebox, picking up a red recycled bag. The
C C
defendant looked into the bag and put his hand inside. That was
D when Police officers went up to intercept him. D
E E
3. Upon search, the defendant was found to be carrying a red plastic
F
bag containing 10 transparent re-sealable bags containing some F
white substance; 7 transparent re-sealable bags with yellow solids;
G G
and a pile of smaller re-sealable bags in another transparent bag.
H
The defendant also had two mobile phones and two SIM cards in H
his right jacket pocket, together with $5,200 cash in his left front
I I
trousers pocket. The defendant remained silent under caution.
J J
4. In a video recorded interview the following day, the defendant said
K K
that the white and yellow substance were ketamine and cocaine
L respectively and that they all belonged to him for his own L
consumption. The defendant said that he bought the drugs from one
M M
Ah B in Yuen Long for about $8,000 at around noon on the day
N before his arrest. He had hidden the drugs at the scene of arrest to N
avoid being caught by the Police. The defendant also claimed that
O O
since he did not hold a driving licence, he asked a friend of his to
P drive him to Ng Uk Tsuen using a borrowed car. The defendant was P
unemployed and was not receiving any government assistance.
Q Q
5. Government Chemist later confirmed that the 10 transparent bags
R R
contained a total of 129g of a powder containing 6.12g of ketamine,
S S
and the 7 transparent bag contained a total of 1.48g of a solid
T
containing 0.61g of cocaine. The estimated street value of the T
ketamine and the cocaine is $18,447 and $1,416 respectively.
U U
CRT21/24.4.2015 DCCC122/2015/Reasons for Sentence
V V
- 3 -
A A
B B
Previous convictions
C C
6. The defendant has 7 convictions with one relating to dangerous
D drugs. The defendant was sentenced to the drug addiction treatment D
centre in 2013 for the possession of dangerous drugs. It would
E E
appear that the defendant committed the present offence not too
F long after his release from the 2013 convictions. He was sentenced F
to the DATC again in December 2014 for wounding under s.19 of
G G
the Offences Against the Person Ordinance, Cap.212, with the latest
H date of discharge being 21st December 2015. H
I Mitigation I
J 7. The defendant is 20 years old and will turn 21 on 24th June. The J
defendant’s parents are divorced and he lives with his father and
K K
sister. Around the time of the commission of the offence, the
L defendant allegedly worked as a casual worker in surveying work at L
construction sites, earning about $20,000 a month. The defendant is
M M
however unable to give the full name of his employer to his counsel,
N nor is he able to produce any proof of employment, such as wage N
receipts.
O O
P 8. Mr. Fung informed the court that the social workers who are P
handling the defendant’s case are of the view that the defendant is a
Q Q
young man who stands a chance of rehabilitation. They are in court,
R on their own time, to show their support. R
S S
T T
U U
CRT21/24.4.2015 DCCC122/2015/Reasons for Sentence
V V
- 4 -
A A
B 9. Given the large quantity of ketamine and the small quantity of B
cocaine that we are dealing with, Mr. Fung suggests a combined
C C
approach with a slight adjustment when sentencing the defendant.
D D
10. It is Mr. Fung’s submission that the defendant claims that a quarter
E E
of the ketamine was for the defendant’s self-consumption.
F F
Sentencing tariff
G G
11. Sentencing tariff for trafficking in heroin as set down in R v Lau
H Tak-ming [1990] 2 HKLR 370 was held to apply to trafficking in H
cocaine as well in the case of Attorney General v Pedro Nel Rojas
I I
[1994] 1 HKC 342. The tariff sentence for trafficking in cocaine of
J a quantity of up to 10 grammes is that of 2 to 5 years’ J
imprisonment.
K K
L 12. Sentencing tariff for trafficking in ketamine is set down in the case L
of Secretary for Justice v Hii Siew Cheng (許守城) [2009] 1
M M
HKLRD 1, CAAR7/2006. The tariff sentence for trafficking in
N N
ketamine of 50 to 300 grammes is 6 to 9 years’ imprisonment.
O O
13. There are two different drugs involved in the present case. However,
P P
given the small quantity of cocaine involved and the relatively large
Q quantity of ketamine involved, I find that the sentence should be Q
based mostly on the ketamine, with a slight adjustment for the
R R
relatively insignificant quantity of cocaine.
S S
14. Trafficking in dangerous drugs is an excepted offence and as such
T s.109A of the Criminal Procedure Ordinance, Cap.221 does not T
U U
CRT21/24.4.2015 DCCC122/2015/Reasons for Sentence
V V
- 5 -
A A
B apply and imprisonment need not be the last resort when sentencing B
the defendant who is below 21 years old. In any event, given the
C C
large quantity of drugs involved, I find that an immediate custodial
D sentence is the only appropriate sentence. D
E E
Self-consumption
F 15. In the case of HKSAR v Wong Suet Hau, CACC 366/2000, the F
Court of Appeal gave guidance on how to deal with situations
G G
where it is suggested in mitigation that ‘a significant proportion of
H the drugs was intended for’ self-consumption and not for H
trafficking. I must look with the greatest care at all the surrounding
I I
circumstances in order to decide whether or not to accept the
J defendant’s contention that one quarter of the ketamine was for his J
self-consumption.
K K
L 16. The quantity of the powder found was 129 grammes, with a street L
value of $18,447. The ketamine (white substance in paragraph 2 of
M M
the summary of facts) were contained in 10 transparent re-sealable
N bags, together with a pile of smaller re-sealable bags. The drugs N
were not found at a residential address but some 8.5 km away from
O O
the defendant’s home in Mai Po Tsuen. The drugs were hidden near
P a firebox on an unnamed road, a public place, where the defendant P
was driven by someone else to pick up. There was no presence of
Q Q
paraphernalia associated with drug consumption found on the
R R
defendant. There is evidence that the defendant is a drug addict
S
given his admission to the DATC. The defendant did say that all the S
drugs were for his self-consumption in the video recorded
T T
interview.
U U
CRT21/24.4.2015 DCCC122/2015/Reasons for Sentence
V V
- 6 -
A A
B B
17. Although the defendant claims that he was working and earning
C $20,000 a month at the time, it contradicts what he had told Police C
earlier in his antecedent statement. The defendant was not able to
D D
come up with the name of his employer nor any wage receipts. The
E E
defendant is educated up to form 5 level with a conviction record.
F
At the time of the present offence, he would have been released F
from the DATC not too long ago. I find it inherently improbable
G G
that he would have been able to secure employment earning
H
$20,000 a month as a casual worker doing surveying work at H
construction sites.
I I
J 18. Even if it is accepted that one quarter of the ketamine was for the J
defendant’s self-consumption, which would be 15.3g of ketamine
K K
(with 45.9g of Ketamine being for trafficking which would attract a
L starting point of 69 months) the possession of the 15.3g of ketamine L
would also carry a sentence. For that amount and with the
M M
defendant’s conviction history, I would have adopted a starting
N point of 12 months’ imprisonment for the possession of the 15.3g of N
ketamine. The total sentence after accepting that one quarter of the
O O
ketamine was for the defendant’s self-consumption would then be
P 81 month’s imprisonment, which is actually higher than if the full P
amount of Ketamine was taken to be for trafficking.
Q Q
19. Nevertheless, after careful consideration of all the circumstances as
R R
mentioned above, I find that I cannot accept the defendant’s
S S
contention that one quarter of the ketamine was for his
T
self-consumption. T
U U
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V V
- 7 -
A A
B Sentence B
20. On that basis, applying the guidelines, I adopt a starting point of 75
C C
months’ imprisonment for the charge. In adopting this starting
D D
point, I have already taken into account the small amount of
E
cocaine. E
F F
21. I find that there are no aggravating or mitigating circumstances
G
other than the defendant’s guilty plea to warrant an adjustment to G
this sentence.
H H
I 22. The defendant is therefore sentenced to 50 months’ imprisonment I
after plea.
J J
Effect of imprisonment on the defendant’s present DATC
K K
order
L 23. Pursuant to section 6A(1)(b) of the Drug Addiction Treatment L
Centres Ordinance, Cap.244, since the defendant has been
M M
sentenced to a term of imprisonment of more than 9 months, his
N DATC detention order imposed on 22 December 2014 in N
TM/2321/14 shall cease to have effect.
O O
P P
Q Q
R (Douglas T.H .Yau) R
District Judge
S S
T T
U U
CRT21/24.4.2015 DCCC122/2015/Reasons for Sentence
V V