HKSAR v. Ai Kwok Leung also known as Ngai Kwok Leung

DCCC 1150/2018

[2019] HKDC 350

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1150 OF 2018

----------------------------

----------------------------

--------------------------------------

REASONS FOR SENTENCE

--------------------------------------

1.The defendant is convicted of a charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 on his own guilty plea. Drugs involved is 13.43 grammes of a mixture containing 10.59 grammes of heroin hydrochloride.

2.According to the agreed summary of facts, the defendant was found in possession of the above drugs at 0838 hours on 21 September 2018 at Ground Floor, Tai Wah Building, Nos 1-13, Nga Tsin Long Road, Kowloon City, Kowloon.

3.The same was packed into two plastic bags, in which there were respectively 35 packets containing a total of 6.72 grammes of mixture containing 5.31 grammes of heroin hydrochloride and 35 packets containing 6.71 grammes of mixture containing 5.28 grammes of heroin hydrochloride. 

4.The estimated value of which is stood at HK$10,864.87.

5.Under caution, the defendant admitted that he was paid $400 to help deliver the drugs.

6.Defendant admitted that the drugs he was carrying was heroin.

Mitigation

7.The defendant is aged 47. 

8.He is married and lived with his wife at a public housing estate. 

9.He used to be a lift maintenance technician, earning $15,000 to $20,000 per month. 

10.At time of offence, he was unemployed. 

11.It was said on his behalf that he was not a drug addict.

12.Although his urine test show that he was a cannabis and a cocaine user.

13.It was also said that he committed the present offence as both himself and his wife was unemployed at the time.

14.Defence counsel for the defendant asked this court that despite the defendant has a previous similar record, the same was dated 20 odd years ago and that the court should not consider that as an aggravating factor. 

15.He also asked this court to give the defendant a sentencing discount in view of his guilty plea.

Discussion

16.Trafficking in dangerous drugs is a serious offence and in usual circumstances, personal background and circumstances is not considered as a valid mitigating factor.

17.In the case of R v Lau Tak Ming & Ors, CACC 230/1989, the band for sentencing a defendant for trafficking in heroin between 10 grammes and 50 grammes would lie between 5 to 8 years.

18.This court noted that the defendant had 19 convictions, 6 related to dangerous drugs and one similar and as said by defence counsel, the same was dated 23 years back when defendant was sentenced to 15 months’ imprisonment. His last conviction was sometime in year 2001 and the present offence was committed on 21 September 2018.

19.It appears that the defendant had been out of trouble for a long time and as his previous similar conviction was years back, this court will not enhance his sentence by reason of that similar conviction.

20.The defendant said he was not a drug addict.  In any event, there is no evidence nor had it been submitted that part of the drugs was for his own consumption.

21.Considering the quantity of drugs in question in the present case, the sentencing starting point should be 5 years and 15 days.

22.The only useful mitigation in this case is the defendant’s own timely guilty plea, of which he is entitled to full one-third sentencing discount.

23.Accordingly, the defendant is sentenced to 3 years 4 months and 10 days’ imprisonment for the present offence.