HKSAR v. Leung Ho Fai

HCCC 140/2018

[2018] HKCFI 1861

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 140 OF 2018

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

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COURT:

The defendant had pleaded guilty in the Magistrates’ Court to one count of trafficking in a dangerous drug, namely 117.52 grammes of a mixture containing 80.64 grammes of heroin hydrochloride, 791 tablets containing 11.49 grammes of midazolam and 200 tablets containing 0.95 grammes of methadone.

The facts are not unusual in that the defendant was seen in the evening of 21 December in the staircase in Yau Ma Tei. He was seen taking a white box from a male and when the defendant was intercepted, inside the box were found 20 foil packs containing a total of 200 tablets containing 2.93 grammes of midazolam.

Upon being arrested and cautioned the defendant claimed that these were for his own consumption. Upon a search of the defendant, from the shoulder bag in which the defendant was carrying were found a plastic bag containing 16 grammes of heroin hydrochloride in a mixture of 22.7 grammes.

Also found were four plastic bags containing a total of 92.2 grammes of a mixture containing 62.9 grammes of heroin hydrochloride.

Also found in the bag were 20 foil packs containing a total of 200 tablets containing 2.89 grammes of midazolam. Also found were 18 packets containing a total of 2.62 grammes of a mixture containing 1.74 grammes of heroin hydrochloride.

That is not all, because another 20 foil packs containing a total of 200 tables containing 2.90 grammes of midazolam was also in the bag.

A further 21 foil packs containing a total of 191 tablets containing 2.77 grammes of midazolam. And then also found, 20 foil packs, containing a total of 200 tablets containing 0.95 grammes of methadone.

Also, in the bag were found 98 resealable plastic bags and to top it all off, cash of HK$7,300.

Again, when arrested and cautioned, the defendant claimed that all this was for his own consumption.

The defendant claimed he was a decoration worker earning about $15,000 to $20,000 a month.

A urine test had been conducted on the defendant showed presence of amphetamine and opiate.

The total street value of all the dangerous drugs found was in the region of $99,525.

The defendant is aged 49 and has some 11 previous convictions, seven of which is dangerous drugs related. In mitigation, his counsel claims that the defendant was intending to give his girlfriend half of the drugs found, and that he was going to keep the other half for himself.

I invited counsel to call evidence because I am not satisfied that the defendant could afford that amount of drugs because he is only earning $15,000 to $20,000 a month. To give half of that amount to his girlfriend and keep the other half, being a drug addict himself and that $15,000 to $20,000 a month’s salary would have to support his ongoing drug habit, so I am not satisfied therefore, that the claim he would keep the drugs, half of the drugs for his own self-consumption, has been met at all in the facts. Counsel declined the invitation to call evidence.

Now, from the facts, it is apparent that there was trafficking going on, because inside the bag were not only found such a large quantity of drugs, but also resealable plastic bags.

The charge contains different drugs, that is heroin, 80.64 grammes of heroin. 11.49 grammes of midazolam and 0.95 grammes of methadone.

I will be adopting the combined approach, as one of the avenues recommended in HKSAR v Yip Wai Yin [2004] 3 HKC 367. And since heroin is the major portion of the total amount of drugs, I will combine all three and it gives a total of 93.08 grammes of heroin.

According to the guideline of R v Lau Tak Ming and Others [1990] 2 HKLR 370 guidelines, for trafficking in between 50 to 200 grammes of heroin, the Court of Appeal recommends a sentence of eight to 12 years after trial. So for this amount of drugs in the present case, I consider that a starting point of 9 years is appropriate.

He being a drug addict, it is obviously that probably he will skim some of the drugs for his own consumption and so I will discount it by 6 months, and giving us a starting point of 8½ years.

Giving him one-third off for his plea, he is sentenced to 5 years and 8 months.