HKSAR v. Lee Chung Kwong

HCCC 242/2018

[2018] HKCFI 2614

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 242 OF 2018

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

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COURT:

On 6 August 2018, at the Eastern Magistracy, this defendant pleaded guilty to two charges, namely, trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance. The particulars of the 1st charge were that:

“Lee Chung-kwong, on 21 August 2017, at No. 29B San Uk Tsuen, Fanling in the New Territories, unlawfully trafficked in dangerous drugs, namely, 72.1 grammes of a solid containing 66 grammes of cocaine.”

Count 2 was in like format, and it read as follows:

“Lee Chung-kwong, on 21 August 2017, inside a private car bearing registration number SG6853 parked at No. 41, Ground Floor, Wah Sum Estate Car Park, Fanling, New Territories, unlawfully trafficked in dangerous drugs, namely, 119 grammes of a solid containing 104 grammes of cocaine.”

He admitted the following Summary of Facts submitted by the prosecution in support of those charges. That Summary of Facts and those pleas of guilty have been confirmed before me today.

Summary of Facts reveals the following. On 21 August 2017, Customs and Excise officers intercepted the defendant in the corridor of the premises at 29B San Uk Tsuen, Sha Tau Kok Road, Fanling in the New Territories. He had with him keys. The keys found in the defendant’s pocket enabled the officers to gain entry to the premises referred to in the 1st count. Those premises were in the main part unfurnished save for a folding table and chair.

On top of this table were two small packets and a box which contained three transparent resealable plastic bags, each containing a white substance. Those bags and their contents were subsequently analysed and it was determined that the contents were 72.1 grammes of a solid containing 66 grammes of cocaine.

On the table, there were also found a further quantity of resealable plastic bags, scissors and an electronic scale. On a key ring seized from the defendant, there was a key to a motor vehicle. The defendant was then taken to the car park referred to in the particulars of Count 2. The defendant confirmed that the motor car there belonged to his brother and had been borrowed by him, a search of this vehicle, like hidden beneath the driver seat, a packet similar to the one found earlier in the premises described in Count 1. Inside that packet, there were five transparent resealable plastic bags. The contents of these plastic bags were ultimately determined to be 119 grammes of a solid containing 104 grammes of cocaine.

The defendant initially told the Customs and Excise officers that the dangerous drugs in Count 2 were for his own consumption. However, he has now admitted and accepts that both parcels of dangerous drugs, that is Counts 1 and 2, were possessed by him for the purposes of unlawful trafficking.

The total quantity of cocaine involved had a market value of $170,000.

The defendant is 26 years of age and has been educated up to Form 3 level. He is single and before his arrest lived with his parents in Fanling.

On 29 December, he was sentenced to a term of 18 months’ imprisonment for the offence of trafficking in a dangerous drug. He was discharged from prison on 24 December 2016. The drug on that occasion was also cocaine.

Mr Ho on his behalf advances that the primary mitigation on behalf of this defendant is his remorse which is reflected in his early pleas of guilty. Because of those early pleas, he is, it is submitted, entitled to a full one-third discount from the starting point for sentence after trial. I agree.

He has on behalf of the defendant submitted two letters as part of his mitigation: one from his brother and one from his former employer. Insofar as his brother is concerned, he submits to me that the defendant was seduced into committing these acts by people with money. He further submits to me that the defendant himself does not have the habit of taking drugs and that he is not the mastermind.

What then is the appropriate approach to sentencing in this matter? For Count 1, the sentence for 66 grammes of cocaine would be governed by the authorities of R v Lau Tak Ming [1990] 2 HKLR 170 and Attorney General v Rojas [1994] 1 HKC 342. The combined effect of both of those authorities is that the Court of Appeal has provided guidance for sentencing for quantities of the drug cocaine. The guidance provided for quantities between the range of 50 to 100 years(grammes?) is a sentence of 8 to 12 years.

Looking at that calculation, 66 grammes of cocaine would attract a sentence after trial of 8 years and 6 months’ imprisonment. Afforded the full one-third discount from that starting point would result in a sentence of 5 years and 8 months’ imprisonment.

Doing a similar calculation for Count 2 where the quantity of drugs is 104 grammes, the sentence after trial would be one of 9 years and 6 months’ imprisonment. With the full one-third discount, a sentence of 6 years and 4 months’ imprisonment would be appropriate.

I must then consider whether in the circumstances, all or any part of these two sentences should be made concurrent or consecutive to reflect the total amount of the cocaine trafficked in both counts. That total amount is 170 grammes. If that were to be sentenced on the basis of one charge, the appropriate starting point after trial would be one of 11 years’ imprisonment. Afforded the full one-third discount, that would be reduced to one of 7 years and 4 months’ imprisonment.

In my opinion, that should be the appropriate end result for sentencing in this matter. To give effect to that, I will order that insofar as Count 1 is concerned, the defendant is sentenced to 5 years and 8 months’ imprisonment. Insofar as Count 2 is concerned, the defendant is sentenced to 6 years and 4 months’ imprisonment.

To arrive at the total sentence of 7 years and 4 months’ imprisonment, I will order that 1 year of the sentence on Count 1 be served consecutively to the sentence on Count 2. For the avoidance of any doubt, the total sentence intended to be one of 7 years and 4 months’ imprisonment.

I have given consideration to whether that sentence should be enhanced by reason of his earlier conviction and sentence for trafficking in cocaine. In the circumstances, given the small quantity of drugs which were apparently involved in the earlier sentence, I have decided that it would not be necessary to further aggravate the sentence in this matter. Therefore, I do not intend to enhance sentence on either count by reference to his previous conviction.

In the end result, I will impose sentences that I have indicated and I will order as I have indicated that 1 year of the sentence on Count 1 will be consecutive to the sentence on Count 2.