HKSAR v. Leung Eric Chun-yung

DCCC 392/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 392 OF 2015

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Reasons for Sentence

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1.The defendant has been convicted of one offence of trafficking in dangerous drug after trial. The drugs are what I believe is described as a cocktail of ketamine and cocaine.

2.The facts of the case have been rehearsed in the earlier judgment.  I do not propose to repeat them.

3.The defendant’s antecedents are agreed.  He is 28-year-old.  We know from his evidence that he had been a driver shortly prior to his arrest and has also worked in the construction industry on a regular basis for over the last few years.

4.Of significance is his admitted criminal record, which was presented in evidence to court, shows that relevant to sentencing is that since 2011 he has been fairly regularly convicted of offences of possession of a dangerous drug, initially being fined in 2011, then periods in Drug Addiction Treatment Centres in 2011 and 12, then sentence of imprisonment in 2014, with the latest being in July of last year an 8-month sentence of imprisonment.

5.The evidence given at trial, as I have already said, shows the defendant has maintained regular employment when he has not been imprisoned and so he has been a very hardworking member of the community.

6.There was also evidence of his consumption of dangerous drug, which includes both the ketamine and cocaine, and evidence from his admission to Lai Chi Kok on arrest with the presence of certainly cocaine in his body.

7.Turning to the approach to sentence, here there are two drugs we are concerned with. 

8.In terms of narcotic content, there is 21.94 grammes of ketamine, which puts that in the sentencing range of between 10 to 50 grammes, which is 4 to 6 years’ imprisonment. 

9.In the cocaine, there is a narcotic content of 3.15 grammes of cocaine, which would put that in the range of up to 10 grammes, which is described to be a sentence of between 2 to 5 years’ imprisonment.

10.The overall total of narcotic seized is 25.09 in total grammes.  Here, of course, there is a combination cocktail of the drug and it appears there are two approaches to sentencing when faced with a cocktail.

11.There is what is described as the individual approach, where the court is to look at each component of the cocktail, then sentence by adding up the different sentences relevant to each individual drug. That obviously would lead to higher sentences in most cases, in a lot of cases.

12.The other approach that the court puts forward is the combined approach, where it is said the court looks at the overall quantity, and it has been said in case Wan Lau Mei in 2014:

“Under the combined approach it is necessary for the judge to identify the drug sentencing tariff that he will employ. This is done by identifying the drug which makes up the bulk of the narcotic seized or when the drugs are of significantly differing potency the judge may use the tariff of the more potent drug if it makes up a significant portion of the total quantity of drugs being trafficked”.

13.Clearly, the drug which makes up the bulk of the narcotic seized is ketamine. 

14.Clearly, there are drugs of significantly differing potency.  As identified in previous approaches to drug sentencing, cocaine has been seen to be, for whatever reason, as more potent than the ketamine.

15.It says the judge may use the tariff of the more potent drug if it makes up a significant portion of the total of drugs, although presumably the definition or the assessment of significance is left up to the individual sentencing judge.

16.Here, the, as I say, vast quantity of drug is the ketamine and the cocaine cannot be said to make up a significant portion of the total in this case.  It is a noticeable portion, but “significant” probably would go beyond that.

17.Clearly, it is also an aggravating factor that there is a combination or cocktail of drugs, but I do not believe that the quantity here can be described as significant, as intended by the court in the case of Wan Lau Mei.

18.So the operative guideline sentence would be that for ketamine and dealing with a quantity in the region of 25 grammes of narcotic and the guideline sentencing tariff would be that for ketamine, which is in the range of 4 to 6 years’ imprisonment, being between 10 and 50, being near the middle.

19.So what I will do is take a starting point for sentence at 4 years 9 months.  That is 57 months’ imprisonment.

20.That, of course, is a starting point, because there is another sentencing factor that must be applied in this case, and that is the fact of the defendant’s drug addiction, providing evidence of his consumption, in whole or in part, of the drugs being trafficked.

21.And there is authority to suggest, where that is, again, a significant factor in the case, the reduction from the original starting point for sentence can range from between 10 to 25 per cent of that starting point.

22.In this case, it is clearly a factor I must have regard to.  Defendant has a substantial addiction over a significant period and no doubt is a hardened user of the drug.

23.I will reflect those sentencing factors by a reduction of 20 per cent from the original starting point.

24.That gives a figure in the region of 12 months’ imprisonment when calculated.

25.So it will be a further deduction from 57 months of 12 months, giving a final sentencing figure of 45 months’ imprisonment.