HKSAR v. Leung Wai Kin

DCCC 522/2018

[2019] HKDC 246

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 522 OF 2018

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Reasons for Sentence

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Charge and facts

1.The Defendant pleads guilty to a charge of drug trafficking. 

2.In the evening on 7 April 2018 PC 10876 (PW1") saw him getting off from the driver's seat of a private vehicle with the registration mark RG9717 ("RG9717") parked near the minibus station at Choi Wan Road, Kowloon Bay.

3.PW1 intercepted him for a body search.  He had RG9717's car key on him. With his consent, PW1 searched RG9717. A re-sealable plastic bag containing 23.9 grammes of a solid containing 18.5 grammes of cocaine (E1) was found in the compartment between the driver's seat and the passenger's seat in the front row of RG9717. The police also seized a mobile phone inside RG9717.

4.Upon arrest and caution he said he was in need of money and brought out the cocaine to pass it to somebody because he had been paid for it. This was post-recorded in PWI's notebook at the scene.

5.He was the registered owner of RG9717. He had a mobile phone and $130 cash on him upon his arrest.

6.The estimated market value of the cocaine in question was $27,724. 

Mitigation

7.He is 33 years of age. He was education up to F. 1 level. He was a delivery worker before arrest. He had various criminal records, including 5 for possession of dangerous drugs from 2002 to 2013 (ie dates of sentences). He had no record for trafficking. I do not regard his previous records as an aggravating factor in his present sentence. 

8.His counsel Mr. Cheung has instructions to invite me to consider that part of the bulk was for the Defendant’s self-use, hence a lower sentence based on a smaller quantity of cocaine for trafficking. My initial reaction is that the Defendant had already pleaded guilty to the charge of trafficking based on the entire bulk. Besides, after arrest and caution, he had told the police that he was going to deliver the entire bulk to someone. To establish this claim for self-use may necessitate a Newton hearing. Mr. Cheung informs me that the Defendant does not intend to have any Newton hearing. My conclusion is to reject this claim of self-use.   

Sentencing guidelines

9.The tariff sentence for trafficking in cocaine of 10 – 50 grammes is 5 – 8 years (R v Lau Tak-ming [1990] 2 HKLR 370).

Sentencing this Defendant

10.I take a starting point of 5 years 6 months (or 66 months).  After a one-third discount for the timely plea of guilty, the sentence is 3 years 8 months (or 44 months).