HKSAR v. Leung Kai Wing

HCCC 42/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 42 OF 2015

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: The defendant, Mr Leung Kai-wing, pleads guilty to one count of trafficking in a dangerous drug contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

The particulars of offence are that the defendant on 17 August 2014 at Kung Um Road, Yuen Long, New Territories in Hong Kong, unlawfully trafficked in a dangerous drug, namely 80.5 grammes of a crystalline solid containing 77.3 grammes of methamphetamine hydrochloride.

Facts admitted

At 0300 hours on 17 August 2014, acting on information, police officers kept observation of a van parked outside 320, Pak Sha Tsuen, Kung Um Road, Yuen Long. The defendant was in the driver’s seat, talking over a mobile telephone. The van then drove off and returned about 13 minutes later. The defendant was still in the driver’s seat.

The police went up to investigate, and the defendant threw his wallet onto the road, which revealed nothing of interest on being searched by the police officers.

Inside a brown envelope held by the defendant, the police found three plastic bags containing respectively 27.5 grammes of a crystalline solid containing 26 grammes of methamphetamine hydrochloride, 26.8 grammes of a crystalline containing 25.9 grammes of methamphetamine hydrochloride and 26.2 grammes of a crystalline solid containing 25.4 grammes of methamphetamine hydrochloride. The total amount of methamphetamine hydrochloride is 77.3 grammes, and the estimated street value was $34,293.

The police arrested and cautioned the defendant for the offence of trafficking in a dangerous drug, and under caution, the defendant said, “Ah Sir, I have been out of work lately, with a daughter to rear, I make some money by reselling the ‘Ice’ to others. Give me a chance. Most of it was for my own consumption. Only when someone ask for it will I sell it.”

There was a mobile telephone and cash $3,390 on the person of the defendant. The van and the defendant’s home were searched, no drugs nor any drug paraphernalia were found.

Criminal record

The defendant has five previous convictions, including two counts of possession of a dangerous drug and one count of trafficking in a dangerous drug. He was last convicted of the offence of trafficking in a dangerous drug on 30 April 2010, and was sentenced to 30 months’ imprisonment.

Mitigation

The defendant is aged 34, married, with three stepchildren. The family is in court to support the defendant.

Counsel for the defendant tells the court that the defendant has now got rid of his drug addiction, and is ready to turn over a new leaf.

The defence counsel submits to court mitigation letters written by the defendant and his stepchild, wife, mother, father, elder sister, cousin, mother-in-law and friends and a District Councillor.

The defendant says in the letter that he has mended himself since the last incarceration. His father, however, was injured in an industrial accident, and cannot work, while his mother suffers from a chronic illness. His sister migrated to the United States in the year 2000, and he became the sole breadwinner of the family. Due to economic pressure, he mingled with those undesirable peers again, and committed the present offence.

He treasures his relationship with his present wife and his family, and hopes to be able to pay them back for their care and love. He asks the court for a chance.

All of the other letters all express good opinion of the defendant, and say that he is genuinely remorseful. They ask for leniency on behalf of the defendant.

The defence counsel points out that part of the dangerous drugs was for the defendant’s own consumption. When the court indicates that it would only accept a small part of the dangerous drugs to be for the consumption of the defendant, the defence counsel says that the defence will not take the matter any further.

The defence counsel cites the cases of HKSAR v Cheung Man Wai, CACC 189/2015 and HKSAR v Tsang Chung Keung, CACC 165/2014 for the court’s reference. He asks the court to be lenient to the defendant.

Sentence

According to the case of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, trafficking in a quantity of 70 to 300 grammes of methamphetamine hydrochloride, the starting point is 11 to 15 years’ imprisonment.

The amount of methamphetamine hydrochloride in the present case is 77.3 grammes, and the starting point is therefore a little bit more than 11 years 1 month’s imprisonment.

The defendant committed the offence because of economic reasons. This, of course, cannot be used as an excuse to breach the law, and certainly does not constitute a valid ground for mitigation.

Although a small part of the dangerous drug was for the defendant’s consumption, according to the cases of HKSAR v Wong Suet Hau and Anor [2002] 1 HKLRD 69 and HKSAR v Tam Ling Yuen, CACC 159/2015, self-consumption of dangerous drugs of a person guilty of unlawful trafficking in those drugs was relevant to sentence only when a significant portion of the drugs were for self-consumption. As such, self-consumption of a small part of the dangerous drugs in the present case does not constitute an issue relevant to sentence. It only has a very limited, if any, value in terms of mitigation.

Having considered the whole circumstances, the court adopts 11 years’ imprisonment as a starting point. Giving credit to the defendant for his plea of guilty, the court sentences him to 7 years 4 months’ imprisonment.

Should there be subsequent changes in the circumstances of the defendant’s mitigation, he may lodge an appeal to the Court of Appeal out of time for reduction in sentence.