HKSAR v. Leung Chun Yin Jack

HCCC 395/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 395 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, Leung Chun-yin, Jack, a 28-year-old man, has pleaded guilty before me to the three counts with which he is charged.

The 1st count is manufacturing of a dangerous drug, contrary to section 6(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134. The particulars of offence were that on or about 28 March 2015, at the 2nd Floor, No 190A Shui Tau Tsuen, Pat Heung, Yuen Long, New Territories, he unlawfully manufactured a dangerous drug, namely cocaine.

The 2nd count is trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance. The particulars of offence were that on the same date and at the same place, the defendant unlawfully trafficked in a dangerous drug, namely 12.49 grammes of a solid and powder containing 6.74 grammes of cocaine.

The 3rd count is possession of a dangerous drug, contrary to section 8(1)(a) and (2) and the same ordinance. The particulars of offence were that on the same date and at the same place, the defendant had in his possession a dangerous drug, namely 3.25 grammes of a powder containing 2.47 grammes of ketamine.

The defendant has also admitted the Summary of Facts prepared by the prosecution. The summary reads as follows:

“(1) On 28 March 2015, the police, in possession of a search warrant, mounted an observation operation at the 2nd Floor, 190A Shui Tau Tsuen, Pak Heung, Yuen Long, New Territories, Hong Kong (“the premises”). The defendant was the tenant at all material times.

(2) At about 2033 hours that evening, DPC2041, that is PW1, DPC3097, that is PW2, and DPC8136, that is PW3, raided the premises. The defendant was seated on a sofa, stood up attempting to leave. He was subdued by PW1 and PW2 who declared their police identity.

(3) The defendant was handed over to DPC5129, that is PW4, and DPC3986, that is PW5, for further investigation. These two officers then took over the crime scene.

(4) The defendant was searched and found to be in possession of a packet of ketamine located inside the right front pocket of his trousers. Under caution, he admitted possession of this dangerous drug for self-consumption. This was later analysed by the Government Chemist and found to consist of 3.25 grammes of a powder containing 2.47 grammes of ketamine. That is Count 3. The street value at the time of the seizure was HK$384.

(5) The police searched the premises and seized a large number of exhibits associated with the manufacturing of crack cocaine (see items D1 to D36 inclusive from the master list of exhibits attached). The defendant was arrested for manufacturing a dangerous drug and under caution, he admitted manufacturing cocaine. That is Count 1.

(6) PW5 attended the scene to assist in the handling of the exhibits. From the seized items, PW5 found three main types of substances, ie:

(a) Dangerous drugs (cocaine and ketamine);

(b) Part 1 poison (lignocaine); and

(c) non-controlled substances (sucrose and sodium bicarbonate)

(7) The cocaine recovered at the scene, according to the Government Chemist report, consisted of 12.49 grammes of a solid containing 6.74 grammes of cocaine. That is Count 2. The street value at the time of seizure was HK$13,327.

(8) The Government Chemist’s reports dated 20 September 2015, together with that dated 14 September 2016, give a complete analysis of the various substances seized at the scene. These reports are agreed by both counsel.

(9) The defendant now pleads guilty to all the three aforementioned counts against him.”

Mr Parry, on fiat for the prosecution has drawn my attention to some items of the exhibits on the exhibits list, namely item 9, one resealable transparent plastic bag containing one box of soda powder, that is sodium bicarbonate, weighing 373 grammes, and Exhibit D18, six boxes of soda powder, that is sodium bicarbonate, weighing 2.88 kilogrammes. This, according to him, is the substance used to mix with cocaine to produce crack cocaine.

Mr Parry has very responsibly drawn my attention to a number of authorities regarding sentencing on manufacturing of a dangerous drug, namely The Queen v Cheung Wai Kwong, CACC 7/1996, that was decided on 21 February 1997, unreported; HKSAR v Ip Yuet Ho CACC 455/2007, that was decided on 26 June 2008, reported [2008] HKEC 1270; HKSAR v Kan Kong Fai, CACC 298/2008, reported [2009] 3 HKLRD 582; and HKSAR v Lo Kwong Yin, CACC 223/2008, reported [2012] HKEC 1360.

These cases pointed out that manufacturing dangerous drugs is more serious than unlawfully trafficking in dangerous drugs:

“The offence of drug manufacturing is the most serious of all drug related offences.”

Per Yeung J, Justice of Appeal (as he then was) in Kan Kong Fai. The learned judge further made the points that the quantity of drugs seized might give an idea of the scale of the manufacturing operation but is not the sole or dominant consideration in determining the starting point. One has to consider also the capacity of the equipment, the output of the drugs at the manufacturing, the role played by the accused. The learned judge also stated in paragraph 19 of the judgment:

“In any event, as far as the offence of drug manufacturing is concerned, an appropriate minimum starting point is 6 years’ imprisonment irrespective of the quantity of drugs seized, in order to reflect the gravity of the offence.”

In the present case, the exhibits show a relatively large quantity of sodium bicarbonate. That is over 3 kilogrammes found in the flat. But apart from that, the paraphernalia inside the flat do not prove that the manufacturing was on a large scale. The sodium bicarbonate, as readily accepted by Mr Parry, can be used for other purposes and there is no proof beyond a reasonable doubt that all of the substance would be used for the manufacturing process.

Regarding unlawful trafficking, I have consulted Cross & Cheung on Sentencing in Hong Kong, page 631. The sentencing for trafficking in cocaine is aligned to the guidelines for trafficking in heroin contained in The Queen v Lau Tak Ming & Others [1990] 2 HKLR 370, and for trafficking in cocaine, regarding a quantity of up to 10 grammes, is 2 to 5 years’ imprisonment; regarding trafficking in ketamine, for the quantity of 1 gramme to 10 grammes, is 2 to 4 years’ imprisonment.

But of course, here, we are not dealing with trafficking in ketamine. We are only dealing with possession of the ketamine. There is no guideline as to that and I consider that a starting point of 6 months’ imprisonment is appropriate for the possession offence.

Drug manufacturing and drug trafficking are very serious offences and sentencing is almost totally dependent on established guidelines and authorities. Save in rare circumstances, personal situation matters little and very little discretion is left to the sentencer.

The defendant has five criminal records. Two of them were for possession of dangerous drugs, the last of which took place in April 2013. That is over three years ago. But for the present offence, he has been in custody since March 2015 and, hopefully, his drug addiction has been cured.

Taking all these circumstances into account, the starting point that I adopt for the 1st count, that is the manufacturing, is 6 years’ imprisonment. Regarding the 2nd count, the trafficking of the cocaine, I adopt a starting point of 3 years and 9 months’ imprisonment, and for the 3rd count, as I said, I consider the appropriate starting point being 6 months’ imprisonment.

I give full credit to the defendant for his guilty plea which reduces the sentence from the starting points by one-third. Therefore, the sentences I impose on the defendant are, respectively, imprisonment for 4 years for the 1st count, for 2½ years for the 2nd count and for 4 months for the 3rd count. I also order all the sentences to run concurrently.

That means, all in all, the defendant, you are going to gaol for 4 years.