HKSAR v. Leung Wing Kei

HCCC 402/2018

[2019] HKCFI 1426

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 402 OF 2018

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Reasons For Sentence

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The defendant, Leung Wing-kei, pleaded guilty to one count of trafficking in a dangerous drug and admitted the facts pertaining to the charge.

The offence took place on 17 May 2018 outside Yat Kwai House, Kwai Chung Estate, Kwai Chung, in the New Territories. The subject matter of dangerous drugs is 27.9 grammes of a crystalline solid containing 25.3 grammes of methamphetamine hydrochloride, also commonly known as ‘Ice’.

At about 2138 hours on 17 May 2018, police officers were conducting anti-narcotics patrol outside Yat Kwai House, Kwai Chung Estate, Kwai Chung when the defendant was seen wandering there and acting furtively. The defendant was intercepted and searched by the police.

Inside the defendant’s right front jeans pocket, the police found a red packet containing the ‘Ice’. The defendant was immediately arrested and under caution he said it was a “Man Gor” who asked him to bring the packet of the dangerous drugs to someone and he would receive HK$500 reward afterwards.

In a subsequent video-recorded interview, under caution, the defendant basically confirmed what he said at scene under caution and he further said that he met Man Gor in an amusement game centre in Mongkok just a few days ago and this Man Gor told him to earn quick money to which he agreed.

On the date of the arrest, Man Gor asked him to pick up a red packet at a flowerbed inside the park at Reclamation Street. After picking it up, he took a taxi to Kwai Chung Estate. He had opened the red packet and saw that it contained a packet of ‘Ice’. He knew it was ‘Ice’ as he was also an ‘Ice’ abuser himself.

While he was waiting for further instruction at Kwai Chung Estate, he was intercepted by the police. A cash of $2,325.40 was found in his possession. According to him, that was a salary that he had earned by working as a part‑time decoration worker.

The estimated street value of the dangerous drugs seized was HK$15,345.

The defendant is now 49 years of age, locally born. He received education up to Secondary 3 in Hong Kong. The defendant was married but his wife has deserted him more than 10 years ago when he was previously sent to prison. Later, the defendant came to know a Thai lady and the couple gave birth to a son who is now 12 years old.

Because of economic reasons, the Thai lady decided later to relocate back to Thailand where she continued to work as a clerk in a domestic helpers agency. The 12-year-old son, I was told, is now also taken care by the Thai lady in Thailand. In Hong Kong, the defendant resided together with his 83-years-old mother and a 50-year-old sister in a public housing estate in Tin Shui Wai.

Mr David Iu, counsel of the defendant, informed the court that more than 20 years ago, the defendant used to establish his own business as a newspaper stall owner and also a barbershop owner, but later his business turned bad and he subsequently worked as a part‑time decoration worker and a construction site worker.

In recent years, he mostly worked as a part-time decoration and construction worker, earning an income of about $12,000 to $14,000 dollars a month. Each month he has to contribute about $2,000 to the Thai lady and the son in Thailand and also another $2,000 to the family in Hong Kong.

As far as criminal record is concerned, the defendant has a total of seven previous convictions. The earliest one dated back to 1994. He had been convicted on three occasions for possession of dangerous drugs and in fact, he was last sentenced to DATC only in 2016. Apart from that, he also was convicted for two trafficking-in-dangerous-drugs convictions, both in 2007 and 2013 for which he was sentenced to 8 years and 6 months as well as 5 years’ imprisonment in High Court respectively.

Mr Iu told me in mitigation that the reason why the defendant has committed the present offence is exactly what he told the police, that he wanted to earn some quick money. Mr Iu stressed the fact that the defendant was remorseful and the guilty plea is his strongest mitigation here. When asked about his previous convictions in the High Court, Mr Iu told the court that it was already some six years ago and asked the court to be as lenient as possible when it comes to considering the enhancement for his previous record.

In sentencing the defendant, I took into account the facts of the case, the quantity of the drugs involved, the background of the defendant as well as the mitigation made on behalf of the defendant.

Trafficking in dangerous drugs is of course a very serious offence. Those who are involved in drug trafficking, once caught and convicted, would expect no mercy from the court. The maximum sentence of trafficking in dangerous drugs is of course life imprisonment and a HK$5 million fine. The defendant, of course, has twice been convicted for trafficking in the High Court and he should know better than that.

The Court of Appeal has repeatedly said that family circumstances play no part in the sentence of the serious offences such as trafficking, and of course the court can never accept economic reasons for committing crimes, especially in a serious crime like the present. It is foolish, to say the least, for the defendant to resort to trafficking once again after six years for just a small amount of reward of $500, and he has only himself to blame for putting himself in the position like this.

The Court of Appeal has already laid down guidelines for the sentencing of trafficking in relation to ‘Ice’. According to AG v Ching Kwok Hung [1991] 2 HKLR 125, the starting point for trafficking 10 to 70 grammes of ‘Ice’ is 7 to 11 years. For the present quantity of 25.3 grammes, the starting point will be 8 years’ imprisonment.

This is already the third conviction of trafficking in a dangerous drugs for the defendant and as a persistent offender, no doubt his sentence has to be enhanced. After taking into account of everything, I decided to enhance his sentence by 6 months, therefore the starting point will become 102 months.

The defendant pleaded guilty in the earliest opportunity and that is the only mitigation for which he would be given the full one-third discount. After the reduction, his sentence was reduced to 68 months and the final sentence that I shall pass to this defendant is therefore 5 years and 8 months’ imprisonment.