HKSAR v. Leung Sai Yuk, Yuki
Read the full judgment text of DCCC 59/2018 on BabelCite. This District Court judgment was delivered on 27 August 2018.
1. Defendant Leung Sai Yuk, Yuki, pleaded guilty before me to two charges namely Charge 1 of Possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134; and Charge 2 of Trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.
Cites 3 cases
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DCCC 59/2018 [2018] HKDC 1058 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 59 OF 2018 ----------------------------
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----------------------------------------- REASONS FOR SENTENCE ----------------------------------------- 1.Defendant Leung Sai Yuk, Yuki, pleaded guilty before me to two charges namely Charge 1 of Possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134; and Charge 2 of Trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. 2.Particulars of Charge 1 are that he, on 24 October 2017, outside Ground Floor, Nos 188-190 Yu Chau Street, Sham Shui Po, Kowloon, in Hong Kong, had in his possession a dangerous drug, namely 0.24 gramme of a mixture containing heroin hydrochloride. 3.Particulars of Charge 2 are that he, on 25 October 2017, at Nam Cheong Street Sitting-out Area, near the junction of Nam Cheong Street and Fuk Wing Street, Sham Shui Po, Kowloon, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 5.57 grammes of a mixture containing 4.41 grammes of heroin hydrochloride. Admitted Facts 4.The facts admitted by Mr Leung may be summarized as follows. Charge 1 5.On 24 October 2017, in the afternoon, outside Ground Floor, Nos 188-190 Yu Chau Street, Mr Leung was seen acting suspiciously. Police officer stopped and searched him. He was found holding a plastic packet containing 0.24 gramme of a mixture containing heroin hydrochloride in his right hand. The estimated street value of the drug was $177.60. 6.Under arrest and caution, Mr Leung stated that the packet was midazolam, not heroin, that he bought it earlier that day outside Block 21 of Shek Kip Mei Estate for self-consumption. 7.In a subsequent cautioned interview, Mr Leung stated that he bought the midazolam from an unknown male for $45. Charge 2 8.Early afternoon of 25 October 2017, at Nam Cheong Street Sitting-out Area, Mr Leung was seen acting suspiciously. Police officer stopped and searched Mr Leung. Upon search, in the left front pocket of Mr Leung’s trousers, police found 3 packets containing a total of 0.84 gramme of a mixture containing 0.69 gramme of heroin hydrochloride. 9.Under arrest and caution, Mr Leung stated that the heroin was for his self-consumption. 10.He was also found to be in possession of cash of $3,407. 11.House search revealed nothing suspicious. 12.In a subsequent cautioned interview, Mr Leung stated that:-
13.On 27 October 2017, urine test on Mr Leung revealed positive result for opiate and benzodiazepine. 14.On 28 October 2017, while on remand in Lai Chi Kok Reception Centre, Mr Leung discharged from his body 7 packets containing a total of 2.70 grammes of a mixture containing 2.13 grammes of heroin hydrochloride. Under caution, he admitted that they were heroin, that he had swallowed them before arrest. 15.On 30 October 2017, he further discharged 9 packets containing a total of 1.68 grammes of a mixture containing 1.31 grammes of heroin hydrochloride. Under caution, he admitted that they were heroin, that he swallowed them during arrest. 16.On 31 October 2017, yet again he discharged 2 packets containing 0.35 gramme of a mixture containing 0.28 gramme of heroin hydrochloride. Under caution, he admitted that they were heroin, that he had swallowed them during arrest. 17.The estimated street value of all the drug under Charge 2 was $4,121.80. 18.Mr Leung now admits that all the drug under Charge 2 was possessed by him for the purpose of unlawful trafficking. Criminal record 19.The agreed criminal record shows Mr Leung had 47 previous convictions accumulated over 32 occasions. Two of them were for trafficking in dangerous drugs (in 2003) while 13 of them were for possession of dangerous drugs the last one of which was in 2017. There was also one conviction for possession of equipment for consuming dangerous drug. Antecedents 20.The agreed antecedents statement shows Mr Leung to be 42 (41 at the time of the offences); that he received F3 education; that he had been a porter in 2017 earning $9,000 a month before he was imprisoned for the offences that accounted for his last few convictions. Mr Leung was last discharged in July 2017 since when he was unemployed. He had been a drug addict since 1993. Mr Leung resided with his aged mother in Tuen Mun and he had been a CSSA recipient from October to December 2016. Mitigation 21.Ms Liza Yip of counsel mitigated on behalf of Mr Leung. 22.The following is a summary of the mitigation submissions. 23.During the 3 months between last release and the present offences, Mr Leung was unemployed and was in receipt of CSSA allowance of slightly more than $3,000 a month. His aged mother also gave him $4,000 from her savings to spend. 24.When Mr Leung purchased the drug under Charge 2, he originally intended to use them for self-consumption. However, when he saw them coming in small beads and being separately packed, he contemplated the possibility that he would in future sell some of them. He swallowed the bulk of the drug to avoid detection in the street by the police. 25.Mr Leung admitted that he committed the second offence while on bail for the first. 26.Ms Yip asked the court not to treat Mr Leung’s previous trafficking convictions as an aggravating factor because they were in 2003 and for only small amounts. However, Ms Yip accepted the history of Mr Leung’s previous drug-related records is appalling. 27.Ms Yip submits that 1/3 of the drug under Charge 2 was for Mr Leung’s self-consumption against which the prosecution does not dispute. Ms Yip sought to rely on Mr Leung’s previous convictions and the positive urine test for heroin components. On this topic, Mr Leung has elected not to give evidence. 28.Ms Yip relied on the two cases submitted by the prosecution namely, HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121 and HKSAR v Tam Ling Yuen [2016] 2 HKLRD 572 to say that the discount given for self-consumption was in the discretion of the court but ranges from 10 to 25 percent. Ms Yip asks for a minimum of 10% in the case of Mr Leung. 29.Lastly, Ms Yip says that Mr Leung knew at the time of arrest for Charge 1 that the dug he was carrying was heroin. Sentence 30.I have considered the mitigation submissions made by Ms Yip. 31.Trafficking in a dangerous drug is a serious offence for which a deterrent sentence is called for. 32.The case of R v Lau Tak Ming & Anor [1990] 2 HKLR 370 lays down the tariff sentences for trafficking in heroin. For trafficking in up to 10 grammes of the drug, the sentence should be between 2 and 5 years’ imprisonment. 33.For Charge 1, that of possession, because of the small (too small to be measurable) quantity of pure heroin involved, I will take a starting point of 6 months’ imprisonment only. 34.For Charge 2, that of trafficking, bearing in mind the aggravating factors of a bad drug-related record and commission of the offence while on bail, I will take a starting point of 3 years 6 months’ imprisonment. 35.Mr Leung has pleaded guilty in good time. For this reason, I will give him the full 1/3 discount. Looking at the circumstances as a whole, I accept that Mr Leung had 1/3 of the drug under Charge 2 for self-consumption. For this reason, I shall give him an extra 10% discount off the sentence for that charge. There are no other mitigating factors that could justify a further discount for either charge. 36.The two offences subject of the charges were committed on different days for which, subject to the principle of totality, consecutive sentences should be imposed. 37.Because of the close proximity in time of the two offences and taking into account totality, I will order partially consecutive sentences. [Mr Leung, please stand] 38.For Charge 1, Mr Leung will go to prison for 4 months. For Charge 2, Mr Leung will go to prison for 25 months, being a rounded down figure. I order that one month of the sentence for Charge 1 be served consecutively to the sentence for Charge 2. The total sentence is therefore 26 months.
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