HKSAR v. Leung Kan Cheung

HCCC 411/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 411 OF 2016

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

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COURT:

Defendant, on 23 September 2016, you pleaded guilty to two charges of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, before a magistrate sitting at the Eastern Magistracy. You have been committed for sentence to the Court of First Instance.

The two charges were committed on the same date and in very close proximity in location. That is, on 25 January 2016, at Lok Man House, Lok Fu Estate, Junction Road, Kowloon. In respect of Charge 1, that offence was committed outside Room 203 and involved 32.4 grammes of a solid containing 18.3 grammes of ketamine and 3.99 grammes of a solid containing 3.58 grammes of cocaine. In respect of the 2nd charge, that charge was committed inside Room 203, and involved 335 grammes of a solid containing 229 grammes of ketamine and 11.5 grammes of a solid containing 10.1 grammes of cocaine.

At about 5.35 pm on 25 January, police officers observed you leaving Room 203 of Lok Man House. You were stopped and searched and inside a bag you were carrying, the drugs in Charge 1 were found. The ketamine was contained in four resealable plastic bags and the cocaine was kept in 20 transparent resealable plastic bags. At the time, you also had upon you cash of $6,170, three mobile phones and a set of keys. You were arrested and under caution, you stated “I took the drugs to somebody”.

Armed with a search warrant, you were then taken into Room 203. Access was gained using the keys found upon your person. The officers also used one of the keys found on you to open a locked bedroom within the premises. Inside the bedroom, in a metal moon cake box, the ketamine in Charge 2 was found in 30 transparent resealable plastic bags and the cocaine stated in Charge 2 was found in one resealable plastic bag. Also found were a large number of empty resealable plastic bags, one electronic scale, a pair of scissors and a sealing device. You were arrested again and, under caution, you said: ‘The dangerous drugs inside the box are all packed by me for selling to others”.

In a subsequently held video-recorded interview, you stated that you were unemployed and had been selling ketamine and cocaine for a living. The cash found on you, you accepted was money earned from your selling drugs. The mobile phones had also been used for the purposes of drug trafficking.

The estimated street value of all the drugs in both charges was that of $64,288.

Defendant, you are 57 years of age and have had education to Primary 6. You have 12 previous convictions. All but three were for gambling and the three that you did have were similar to this offence, that is, of trafficking in dangerous drugs to which you were sentenced, in June 2000, to a very lengthy period of imprisonment. I am informed that you were released from that term of imprisonment in September 2008.

Mr McNamara has mitigated on your behalf. He recognises that the only mitigating factor here is your plea of guilty at the very first opportunity. He asked that this court give you the full one-third discount as a result of that, and for the court to take the combined approach in respect of the two different kinds of drugs when sentencing you.

He notes that although you have been in serious trouble before and spent a lengthy time in prison, on this occasion, you seemed to have taken the time to reflect on your performance and, since the arrest for this offence, you have joined a prison Christian group, and indicating your true remorse, you have, in May, that is long before today, written to the Government of Hong Kong to register as an organ donor. This is confirmed by a letter to this court.

In respect of sentence, the drugs involved were that of ketamine and cocaine in both charges. For the purpose of sentence, I shall take, firstly, a global approach. That is to take the total drugs in both Charges 1 and 2, arrive at a starting point in terms of imprisonment, give you full credit for your plea and sentence you on that basis, and then sentence you individually for each charge respectively, which will reflect the global term of imprisonment.

The leading cases for trafficking in the dangerous drug ketamine is Hii Siew Cheng and that for cocaine is Lau Tak Ming. Dealing first then with the global approach, that is the total drugs contained in Charges 1 and 2. For the ketamine, the total amount of ketamine in Charges 1 and 2 amounts to 247.3 grammes. Defendant, had you been convicted after trial, an appropriate starting point for that amount of drugs would have been one of 8 years and 3 months’ imprisonment. That falls within the bracket of 50 to 300 grammes laid down in Hii Siew Cheng, of a starting point between 6 and 9 years’ imprisonment.

For the total amount of cocaine in both charges, the quantity is one of 13.6 grammes which, in following Lau Tak Ming, that falls within the bracket of 10 to 50 grammes which warrants a term of imprisonment, after trial, of between 5 to 8 years’ imprisonment. Had you been convicted after trial in trafficking in 13.6 grammes, an appropriate starting point would be one of 5 years’ imprisonment.

I take the combined approach in sentencing you and also take the conversion of cocaine to that of ketamine. That amount of cocaine, that is the one which warrants 5 years’ imprisonment, would equate to approximately 30 grammes of ketamine. Therefore, adding 30 grammes to the total 247.3 grammes of ketamine will equal 277.3 grammes. In following the guidelines as laid down, had you been convicted after trial, that would warrant a starting point of 8 years and 6 months’ imprisonment.

You have three previous drug trafficking convictions for all of which you were sentenced on the same date in June 2000, to a lengthy term of imprisonment. As laid down in the case of Abdallah Anwar Abbas [2009] 2 HKLRD 437, it is an aggravating factor calling for enhancement of the starting point where the trafficker has previously been convicted of trafficking in dangerous drugs. You therefore fall within that factor. This is an aggravating factor and there should be an enhancement of the starting point.

I note, however that you have been out of trouble for at least 8 years since that last conviction and, in the circumstances, I take an enhancement of 3 months’ imprisonment. Therefore, the sentencing point, had you been convicted after trial, would have been one of 8 years and 9 months’ imprisonment. Giving you full credit for your plea of guilty, that is a one-third discount, you shall be sentenced to a total term of 5 years and 10 months’ imprisonment.

I still now need to deal with the individual sentences and sentence you accordingly.

For Charge 1, there was 18.3 grammes of ketamine and 3.58 grammes of cocaine. Again, I take the combined approach and apply the conversion. That is, I will convert the cocaine to ketamine. Trafficking in cocaine of that amount warrants a starting point of 2 years 9 months’ imprisonment, which equates to approximately 4 grammes of ketamine. I would therefore add the 4 grammes to 18.3 grammes of ketamine, making a total, in Charge 1, of 22.3 grammes of ketamine. Taking the guidelines as set down, had you been convicted after trial, a starting point of 4 years and 6 months’ imprisonment would be appropriate. Giving you full credit for your plea of guilty, that term shall be reduced to one of 3 years’ imprisonment on Charge 1.

I turn to Charge 2. There were 229 grammes of ketamine and 10.1 grammes of cocaine. Again, I take the combined approach and convert the cocaine into ketamine. For 10.1 grammes of cocaine, that would warrant a term of 5 years’ imprisonment after trial. That amount of cocaine, on a conversion rate, would equate to approximately 30 grammes of ketamine. I then add 30 grammes to that of 229 grammes of ketamine which makes a total of 259 grammes of ketamine for Charge 2. For trafficking in 259 grammes of ketamine, an appropriate starting point after trial is one of 8 years and 6 months’ imprisonment. Giving you full credit for your plea of guilty, that term shall be reduced to one of 5 years and 8 months’ imprisonment.

Those are the individual sentences for Charges 1 and 2. However, to reflect the global term of 5 years 10 months, I order 2 months of Charge 1 to run consecutive to Charge 2 which makes the term of 5 years and 10 months’ imprisonment.