HKSAR v. Leung Kwong on

DCCC 739/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 739 OF 2015

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Reasons for Sentence

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1.The defendant has pleaded guilty to one charge of trafficking in a dangerous drug. He has also agreed the facts of the case.

2.The total narcotic content of the drug that was trafficked is 10.92 grammes of cocaine

3.The charge originates out of activity by the police on 5 May 2015 when they entered a flat in which the defendant was present.  A search of the room led to the police discovering the drugs in the rear left pocket of a pair of trousers hanging behind the main door of the room the defendant was in.

4.The drugs were found in a total of what is 88 plastic bags of cocaine, and the 10.92 grammes of cocaine that were found was valued at $23,755.

5.Inside a toolbox inside the toilet of the room police found two electronic scales and a plastic bag that contained a further 961 resealable plastic bags. Clearly, there was a presence of items for use in trafficking drugs, and the defendant has admitted that he possessed those drugs for the purpose of trafficking in them.

6.The defendant’s antecedents have been admitted.  He is aged 51.  He has nine previous occasions on which he has been convicted.  There are a number of gambling convictions and one relevant conviction back in 1985, when the defendant was sentenced to a short period of imprisonment for possession of dangerous drugs.

7.In mitigation, the defendant’s circumstances have been clearly outlined, and that is that he has worked as a bartender in the past, and also did become addicted to drugs back in the early 1980s, but was able to give up the drug at that stage, and that appears to be supported by the conviction record.  There are no further convictions until today.

8.The defendant in 2011 started a business operating a bar.  He did that with his wife.  The business turned out to be not successful, and the defendant lost both the business, and also his wife clearly had medical problems, and they have recently been divorced this year.

9.The defendant in his antecedents statement said that he had been addicted to drugs for about two years, and in mitigation said it was around about 2012 he resumed drug taking by taking cocaine, taking, on average, some 2 grammes per day, and conducting trafficking activities to support his own addiction.

10.The defendant has also produced a medical report which was made following his admission into the custody of the Correctional Services Department, and they confirm that he was admitted into the reception centre on 6 May this year.  He told them at that time he had abused cocaine for about two years, with his last dose being taken on 4 May, which was the day before the police raid.  The specimens taken on 7 May showed positive results to cocaine, which supports the defendant’s claim that part of the drugs was for his own consumption.

11.As far as mitigation is concerned, the defendant says there are factors he would wish the court to take into account:  firstly, that the quantity of narcotic in the drug puts this case at the lowest end of the category in the guideline; secondly, that he would have consumed part of the drug himself, and asks for a discount for that factor; and finally, following that, there should be a one-third discount for his plea of guilty.

12.The approach of the court will be as follows.  Firstly, I must designate an overall starting point.  That is determined by the quantity of drugs in this case. There are no other aggravating factors.  Although the defendant does have one conviction for possession of dangerous drugs, it is an historic conviction.

13.The quantity of drugs in this case falls between the category of 10 to 50 grammes, which is between 5 to 8 years’ imprisonment.  It is only just within that guideline, so I will take the overall starting point of 5 years’ imprisonment, which is 60 months.

14.I must consider whether a deduction for self‑consumption is appropriate in this case. There is clear supporting evidence that the defendant was at the time an addict to this drug and a consumer of the drug.  He told the Correctional Services Department doctor and also the police that he was a consumer of the drug, and that is supported by the medical report from the Correctional Services Department.

15.The drug found in this case was already broken down into doses found in a large number of plastic bags, and so would have been consumable.

16.I consider this is a case where it is appropriate there should be a deduction for the defendant’s self-consumption of the drug.  There is authority for the proposition that a discount in sentence for this would usually be between 10 to 25 per cent of the basic starting point, the exact discount depending on nature and quantity of the drug, proportion of the drug intended for self-use, and whether the offence is organised and premeditated for financial gain, and the defendant’s background and record.

17.Taking those factors into consideration, there shall be a further discount of 15 per cent from the original figure, and that is a deduction of 9 months’ imprisonment.  That now leads to a starting point of 51 months’ imprisonment, from which there will be a deduction of one-third for the defendant’s plea of guilty.

18.This leads to a final sentence of 34 months’ imprisonment.