HKSAR v. Leung Hing Yip

DCCC 375/2018

[2018] HKDC 1533

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 375 OF 2018

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REASONS FOR SENTENCE

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1.Customs officers stopped and searched the defendant in the streets in Cheung Sha Wan leading first to the discovery of illicit cigarettes and later drugs at his home in Tsing Yi.

2.The defendant, a 42-year-old man, pleaded guilty before me to one count of possession of dutiable goods (Charge 1), i.e. 600 cigarettes, and one count of possession of drugs (Charge 2), namely, 2.55 grammes of herbal cannabis, 7.29 grammes of a solid containing 6.66 grammes of cocaine and 7.48 grammes of a solid containing 6.38 grammes of ketamine.

3.In the morning of 10 January 2018 at about 10 o’clock, the defendant walked along Castle Peak Road in Cheung Sha Wan with a rucksack bulging with angular objects, which aroused the suspicion of a team of plainclothes customs officers who happened to be patrolling in the vicinity.

4.The officers stopped the defendant for questioning and in the rucksack, they found 600 illicit cigarettes– the subject matter of charge 1. The packets of cigarettes contain the printed words “HKDNP” which stands for “Hong Kong Duties Not Paid”.     

5.Later in the day, the defendant was taken back to his home, a public housing unit in Cheung Hon Estate, for a search and customs officers found in his bedroom the drugs in this case which were put in four separate plastic bags – 2 bags of cocaine, one bag of cannabis and one bag of ketamine, and also a hand-rolled cigarette containing cannabis.

6.He claimed that those drugs were for his personal use and he bought it from a man for $2,000 in a park in Sham Shui Po. In the subsequent interview, he further told the officers that he worked as a transportation worker earning $8,000 a month and the way he would normally consume the drugs in question – he would snort ketamine but smoke the other two kinds of drugs.

7.The street value of the seized drugs is estimated to be $650, $7,700, $4,100 respectively for cannabis, cocaine and ketamine. The total value is slightly over $12,000.

8.The defendant has only one minor conviction in the past – in 2001 he was fined $1,000 for buying dutiable goods.

9.Counsel for the defendant has given the court a very detailed account of the defendant- his family, jobs, finances, drug habit etc. In short, he lives with his two brothers both of whom need his care because one of them is slightly retarded while the other is having various health problems. 

10.The father passed away when the defendant was very small. The mother and the defendant, however, are very close, counsel said, but unfortunately, she suffered a stroke in 2013 which left her paralysed. She had to move out of the public housing unit to live in a nursing home for special care, which cost the defendant an extra few thousands a month despite government’s subsidies.   

11.Consequently, with his meagre income, the defendant soon found himself in desperate financial straits, life without doubt was hard then, but things have got better since September 2018 as the care of his mother was fully paid for by the government, counsel said.

12.The defendant had lost his causal delivery job for 9 months from March to October 2017, counsel said. Counsel went on to say that the loss of his job plus the need to look after his brother’s and mother’s welfare caused a great deal of anxiety and stress which led him to stupidly turn to drugs to try and alleviate the stressful situation he had found himself in.

13.An almost clean criminal record notwithstanding, it’s submitted that the defendant had been a long-time drug abuser at least up to November 2017 – counsel said that the defendant started abusing various drugs like cannabis, cocaine as well as ketamine at the age of 24 but ceased using ketamine about 10 years ago when  it had taken its toll of his health.

14.The use of cocaine together with the ketamine only started in March 2017, counsel said, when the defendant found himself in a difficult-to-cope situation - the unemployment, the welfare of his two brothers and the health and care of his dear and beloved mother.

15.Counsel further submitted (and I quote) that since finding employment in November 2017, the defendant has ceased using drugs and has been drug free. This is confirmed by his urine test during remand at the Lai Chi Kok on 11 January 2018 and all the other urine tests undertaken with the Hong Kong Youth and Children services from May to November 2018 – they all showed a negative result.

16.Worrying that any form of custodial sentence would have a harmful effect on the welfare of his brothers and mother, counsel was trying hard to persuade the court not to call for a DATC report and to deal with it there and then by way of non-custodial or suspended sentence (which is allowable under the provision of section 54A(4) of the Dangerous drugs Ordinance).

17.Given the relatively large quantity of drugs the defendant admitted to possession, the court adjourned the matter to enable a DATC report to be prepared on the defendant.

18.Now the report is before me, which does not recommend admission to the Centre because the defendant, in the opinion of the officer, is not a drug dependent.

19.Today in his letter to the court, the defendant expressed remorse for what he had done and promised that he would stay away not only from drugs but would quit his smoking habit too. The rest of the content is basically a repeat of what his counsel had said in mitigation on the last occasion. 

20.In Mok Cho Tik CACC 165/2000, the Appellate Court said this:

“……We remain of the view that the starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months, …… Obviously the quantity will be the main governing factor which will determine where the starting point will lie. If an offender is a persistent offender he can expect the starting point to be higher than it otherwise would be. The existence of the risk factor and a degree of risk is not a matter of mathematics upon which this court should provide a tariff. Amongst the obvious factors to be taken into account are whether the offender is in employment; whether the drugs are kept in a place to which others have access; whether offender has conviction for trafficking; and of course the quantity of drugs. The full circumstances of the risk must be assessed.”

21.Turning back to the instant case, given the amount of drugs the defendant found to have possessed which is certainly not of a small quantity for a case of mere possession, I take 15 months as the starting point.

22.Coming to the issue of the risk factor - given the scenario as described by the defence counsel in mitigation, the risk of some of those drugs finding its way to others, in my view, can’t be overestimated.

23.Counsel said in mitigation that ever since becoming gainfully employed again in November 2017, the defendant has led a drug-free life and cited the negative result of the urine test taken while the defendant was in custody for the present offences in support of his drug-free assertion.

24.I have no reasons to doubt what was put forward by his counsel; what he in effect was saying is the defendant was no longer relying on drugs at the time of the offence. But in actual fact he had had in his possession a large quantity of more than one kind of drugs of which he supposedly had no further use, isn’t it all the more reason to believe that at least part of the drugs would be used by others and not by him?

25.As I said before I found the latent risk to be very high in this case; for that matter, I would add 12 months on top to take the starting point to 27 months. His plea is timely because he originally charged with trafficking but pleaded guilty to the lesser charge of possession which the prosecution accepted, so he is entitled to the full one-third discount. The starting point is reduced to 18 months.

26.There being nothing else to justify a further reduction in sentence, for the offence of possession, the defendant is sentenced to 18 months’ imprisonment.  

27.As far as the illicit cigarettes are concerned, though this is his second offence, a fine is still appropriate - perhaps a heavier one. He is fined $2,000 (To be taken from the defendant’s bail money).