HKSAR v. Leung Kok Man

HCCC 500/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 500 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 Kok-man, pleads guilty to one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134. The particulars of offence are that the defendant, on the 29th day of May 2015, at No 442 Portland Street, Mong Kok, Kowloon in Hong Kong, unlawfully trafficked in dangerous drugs, namely 93 grammes of a crystalline solid containing 91.20 grammes of methamphetamine hydrochloride and 3.42 grammes of a solid containing 2.29 grammes of heroin hydrochloride.

Facts Admitted

At around 0345 hours on 29 May 2015, police officers stopped and searched the defendant at Ground Floor, 442 Portland Street, Mong Kok, Kowloon. The dangerous drugs, namely 93 grammes of a crystalline solid containing 91.20 grammes of methamphetamine hydrochloride, commonly called ‘Ice’, and 3.42 grammes of a solid containing 2.29 grammes of heroin hydrochloride, were found in the right trousers pocket of the defendant. On the person of the defendant, there were also cash $16,339, three mobile telephones and two bank transfer slips in the sums of $2,600 and $14,000 respectively.

Criminal record

The defendant has 9 previous convictions, all dangerous drugs connected, of which 3 were trafficking in a dangerous drug. He was last convicted of one count of possession of a dangerous drug on 22 October 2014, for which he was sentenced to 5 months imprisonment.

Mitigation

The defendant is aged 60 and today is his birthday. He was educated to secondary level and was a renovation worker. The counsel for the defendant makes a persuasive mitigation submission on behalf of the defendant. He says that as heroin and ‘Ice’ have similar sentencing guidelines, the court can treat the two types of dangerous drugs involved in the present case as if they are all ‘Ice’. According to him, this will bring the total weight of ‘Ice’ to 93.49 grammes which carries a starting point of 11 years 5 months imprisonment according to the sentencing guidelines of Tam Yi Chun.

The defence counsel tells the court that the defendant had come into contact with dangerous drugs since the age of 20 and was still a drug addict at the time of his arrest for the present case. The counsel submits to court the report of urine test of the defendant conducted on the admission of the defendant to Lai Chi Kok Reception Centre.

According to the report, the urine of the defendant was tested positive to amphetamine, showing that the defendant had consumed ‘Ice’ before the arrest. According to the defence counsel, the defendant consumed about one-third of a gramme of ‘Ice’ every day, but he is unable to tell the court how much of the dangerous drugs in question was for the defendant’s own consumption because it all depended on how long the defendant had to take to dispose of all the dangerous drugs.

The defence counsel asks the court to take into account that part of the dangerous drugs was for the own consumption of the defendant, and adopt 11 years 3 months imprisonment as the starting point. He asks the court to give the full one-third discount to the defendant for his plea of guilty.

Sentence

As correctly pointed out by the defence counsel, the Court of Appeal laid down sentencing guidelines for trafficking in ‘Ice’ in the case of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. For a quantity of 70 to 300 grammes of ‘Ice’, the starting point is 11 to 15 years imprisonment. The court agrees with the defence counsel that heroin and ‘Ice’ are of similar potency and that the sentencing guidelines for them closely resemble each other. Due to the very small amount of heroin involved in the present case, and for the sake of fairness, the court agrees that it can be treated as if it is ‘Ice’, making a total of 93.49 grammes of ‘Ice’ in the present case, entailing a starting point of a little bit less than 11 years 5 months imprisonment.

The court accepts that part of the dangerous drugs were for the defendant’s own consumption. The court must, however, points out that according to the authorities, the court will only be required to take this issue into consideration when a significant proportion of the dangerous drug was for the consumption of the defendant. The court, in any event, accepts that sentencing in a dangerous drugs case is not a strict mathematical calculation.

Having considered the whole circumstances of the case, the court agrees with the defence counsel that 11 years and 3 months imprisonment is an appropriate starting point for the present case.

Giving credit to the defendant for his plea of guilty, the court sentences him to 7 years 6 months imprisonment.