HKSAR v. Leung Kin Man and Another

HCCC 396/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 396 OF 2015

-----------------

------------------

---------------------------------

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

---------------------------------

COURT: Both defendants are jointly charged with one count of trafficking in dangerous drugs, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134 of the Laws of Hong Kong.

The particulars of the offence allege that they together, on 27 March 2015, at Flat 1, 1st Floor, Block 3, Kai Tak Mansion, No 55 Kwun Tong Road, Ngau Tau Kok, Kowloon, in Hong Kong, unlawfully trafficked in dangerous drugs, namely 2,106 grammes of a crystalline solid containing 2,014 grammes of methamphetamine hydrochloride, a drug which is commonly known on the streets of Hong Kong as ‘Ice’.

Both defendants were committed to this court for trial from the Eastern Magistracy on 9 October 2015. On 11 November 2015, the listing judge fixed their trial for 10 days, commencing today. At a pre-trial review hearing on 17 August of this year, the 1st defendant indicated that he would enter a plea of guilty to the indictment and the 2nd defendant indicated that he would enter a plea of not guilty. At that time, the 1st defendant, through his counsel, advised the pre-trial judge that he would be prepared to give evidence in the prosecution’s case against the 2nd defendant. A further pre-trial review hearing was fixed.

On 11 October of this year, the 2nd defendant also advised that he would plead guilty. The trial dates were vacated and the matter listed for hearing today is a plea and sentence.

Today, both defendants have pleaded guilty to the indictment and admitted a Summary of Facts in support of it which has been prepared by the prosecution.

Stated briefly, that Summary of Facts reveals that on 22 March 2015, a DHL employee went to the address specified in the indictment in Ngau Tak Kok. He had instructions to collect a number of cartons for delivery to Melbourne, Australia. Upon his arrival, he was met by the 2nd defendant who took him into the premises. Once inside, he saw that the 1st defendant was still packing some of the cartons and identified himself to the DHL employee as the owner of the goods. In accordance with DHL procedures, the employee examined the cartons and noted that they contained apparently moulded toys. Having weighed and measured all of the cartons, the DHL employee calculated the delivery charges to be in excess of $22,000 which was a sum substantially in excess of the $8,000 previously quoted for delivery.

The 1st defendant did not have sufficient cash to pay the delivery charges so the DHL employee left the premises, intending to return later to receive payment in full and take delivery of the cartons.

The DHL employee’s suspicions were aroused by the circumstances of the delivery. The fact that the defendants intended to pay by cash and that this was a large quantity only of toys led to him reporting his suspicions to security department of DHL who, in turn, alerted the police.

It suffices to say that, subsequently, the police, disguised as DHL employees, returned to the premises and having been admitted to them in that guise, saw the 1st defendant who, in turn, identified the goods that were to be collected and consigned to Australia. At this point in time, the police officers revealed their identities and searched the 20 cartons in the premises.

Again, it suffices to say that whilst some of the cartons contained toys, there were four plastic drum-like objects within which was concealed significant quantities of methamphetamine hydrochloride. Similarly, in another carton, five similar toys each containing methamphetamine hydrochloride were also located. The balance of the cartons contained toys.

The total quantity of methamphetamine hydrochloride, upon analysis, which was retrieved from the toys was 2,106 grammes of a crystalline solid containing 2,014 grammes of methamphetamine hydrochloride. That methamphetamine hydrochloride had an agreed street value of in excess of HK$830,000.

Amongst other items found in the flat when searched by the police were electronic scales, adhesive tape, tin foil, scissors and plastic wrap together with the sum of $22,900 in cash.

The 1st defendant is 24 years of age and his antecedents statement reveals very little other than the fact that he has one previous conviction for dangerous driving. I am told by his counsel today that he has, right from the outset, indicated that he would plead guilty to this charge. Several letters in mitigation have been placed before me which all collectively indicate that he is remorseful for his involvement in this offence. I am advised by his counsel today that it is his intention to return to schooling whilst incarcerated and attempt to resolve the difficulties in his life. He appreciates, however, that the sentencing bands for trafficking in this substantial quantity of methamphetamine hydrochloride will inevitably result in a lengthy term of imprisonment.

The 2nd defendant is 35 years of age and his antecedents statement reveals that he has, since 1997, been involved in contraventions of the laws of Hong Kong. His first offence for trafficking in dangerous drugs was in the year 2003, followed by another in 2008 and 2010. I am advised by his counsel that these were for low level drug trafficking in circumstances where he, as an addict himself, had been apprehended with quantities that he had indicated he would provide or sell to others. I am told by Mr Donald, his counsel, that this is the first time that he has been involved in a major drug trafficking offence.

Insofar as both of the defendants are concerned, their counsel readily acknowledge that the offence is a serious one and there is little that can be said in way of mitigation other than for the fact that the 1st defendant was instrumental in the 2nd defendant changing his plea from one of not guilty to guilty.

It is accepted and readily apparent that the decision by the 1st defendant to elect to provide a non-prejudicial statement to the prosecution and indicate that he was prepared to give evidence against the 2nd defendant directly resulted in the 2nd defendant changing his plea to one of guilty and thereby saving a considerable amount of court time and expense. He will, of course, be entitled to some benefit by reason of that.

Dealing with the sentencing guidelines, it seems that both counsel accept that the court is bound to apply the guidelines set down by the Court of Appeal for those trafficking in methamphetamine hydrochloride. The ones that I will bear in mind for the purposes of this sentencing today are Attorney General v Ching Kwok Hung [1991] 2 HKLR 125, HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 and HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437.

Applying those guidelines and in particular the band of guidelines at (g) in the case of Abdallah which indicates that for a quantity of 1,200 to 4,000 grammes of methamphetamine hydrochloride, a sentencer should, after trial, consider starting points between 23 and 26 years’ imprisonment, applying those guidelines as best as I can, and I see no reason to do otherwise, I am intending to adopt, in the case of both defendants, a starting point of 24 years’ imprisonment.

Dealing with the 2nd defendant first - and I make it quite clear that this is the 2nd defendant I am dealing with - he is entitled to a full one-third discount from that starting point of 24 years for his plea of guilty. That will result in a sentence of 16 years’ imprisonment.

There are no other factors in the mitigation or the circumstances of the commission of the offence which will justify a departure from that full one-third and the sentence that will be imposed on him is one of 16 years’ imprisonment.

Dealing with the 1st defendant, he of course is entitled to a full one-third discount for his plea of guilty, but in addition to that, he is entitled to a further discount by reason of his offer to give evidence against his co-accused, the consequences of which were the co-accused changed his plea from one of not guilty to guilty.

To attempt to quantify it in the percentage would lead to a discount in a figure of months and years. I prefer to adopt a rounded figure and I intend to give him a further discount of 2 years from the starting point of 16 years, which would result in a sentence for him of 14 years’ imprisonment.

In the result, the 1st defendant is sentenced to 14 years’ imprisonment and the 2nd defendant is sentenced to 16 years’ imprisonment.