HKSAR v. Leung Chun Ho

HCCC 33/2019

[2019] HKCFI 1945

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 33 OF 2019

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

Defendant has pleaded guilty to two charges of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance. Defendant, you have admitted on 1 March 2018 you unlawfully trafficked in dangerous drugs, namely a total of 697.3 grammes of cocaine. This plea was entered before Eastern Magistracy on 28 January 2019 and you were committed to the Court of First Instance for sentence.

On 1 March 2018 at about 6 pm, the police were on patrol conducting an anti-narcotic operation in the vicinity of Ma Tin Pok Tsuen in Yuen Long. At about 10.15 that night, the police saw the defendant walk towards them and then they intercepted him. He was searched and in his sweatshirt pocket they found one transparent resealable plastic bag containing 31.2 grammes of a solid containing 28.3 grammes of cocaine, the drugs of Charge 1. The police also found keys, two mobile phones and $7,060.

After arrest and under caution, the defendant admitted that he had left premises nearby with the drugs to deliver them to a purchaser. The police then took the defendant back to the said premises which they discovered was subdivided into two rooms. The defendant’s key gained access to Room 2 and the defendant gave the police a numerical code for a digital safe inside that room. In the safe, the police found 31 packets containing 733 grammes of a solid containing 669 grammes of cocaine, the drugs of Charge 2. He was cautioned again and admitted these drugs were for resale. The police also found some other empty transparent resealable plastic bags, a digital scale, one sealing machine and a tenancy agreement in the defendant’s name.

A subsequent video-recorded interview was conducted and the defendant further admitted that in January 2017 he met a man called Ah Keung. This man had recently called the defendant and asked him if he wanted to make some quick money. The defendant agreed and a mobile phone was delivered to him.

On 28 February 2018 at about 9 pm, Ah Keung called him to the entrance of that village and gave him a bag containing 32 packets of cocaine. He took them home and placed the bags in the safe. He bought a sealing machine to secure the bags and bought an electronic scale as instructed by Ah Keung.

On the night of his arrest, Ah Keung had asked him to take one packet of cocaine to Tseung Kwan O where he would receive a phone call with further delivery instructions. He was intercepted by the police on his way to make that delivery. He would receive $1,000 a day for storing the drugs in his home, $30,000 per month. He had yet to be paid. The rent of that room was $3,500 per month.

It is agreed that the estimated market retail value of that amount of cocaine at that time was $943,023.

The defendant’s best mitigation is his plea of guilty. Mr Fung has said all he can say on behalf of the defendant. He is 25 years old and came to Hong Kong from mainland China in 2003. His parents divorced when he was about 15 in 2009 and he was left with his paternal grandmother to be raised. She died in 2014 and it appears he has little contact with his own parents. He is not highly educated. He left school after Form 3. He has tried his hand at a few trades but was unemployed at the time of his arrest. He was not receiving any financial subsidy from the government.

He told the police that he was not a drug addict. The defendant is not a man with a clear record. He has three previous convictions all relating to possession of dangerous drugs in 2003, 2015 and 2017. In mitigation, the defendant says he was a drug addict but has managed to kick the habit after his last conviction. He is not trying to argue here that any of the drugs were for his own consumption.

Sentencing Guidelines

Trafficking in a dangerous drug is a serious offence. On conviction on indictment, a person is liable to a fine of $5 million and to imprisonment for life. Sentencing guideline for cocaine is found in the authority of R v Lau Tak Ming [1990] 2 HKLR 370 and HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437. Although that Lau Tak Ming authority involved trafficking heroin, the Court of Appeal subsequently ruled that those guidelines are equally to be applied to trafficking cocaine.

In Abdallah, the Court of Appeal had to consider supplementary guideline to those in the Lau Tak Ming authority to apply to cases with very large quantities, quantities above 600 grammes. It was decided that where between 600 to 1,200 grammes of cocaine is involved, the starting point will be between 20 to 23 years. Mathematically speaking, trafficking in 697.3 grammes of cocaine would attract a starting point of 20 years and 6 months.

Defendant, please stand up. I have taken into account everything said on your behalf, your background as well as the facts of this case and the quantity of cocaine. As is normally the case, there is nothing in mitigation that carries significant weight in light of the seriousness of the offence and the large quantity of cocaine. As I have already said, your plea of guilty is your best mitigation. I will also take into account that although you have drug-related convictions, this is your first conviction for drug trafficking.

Because of the proximity of both charges, I will add the drugs of both charges together and consider a global starting point. I find a starting point of 20 years appropriate and since you have pleaded at the earliest opportunity, you are entitled to a discount of one-third for your guilty plea. After that discount is applied, you are sentenced to, for Charge 1, 13 years and 4 months; for Charge 2, 13 years and 4 months. I order that both charges be served concurrently. Therefore, the total sentence is one of 13 years and 4 months’ imprisonment. Do you understand that sentence?

ACCUSED: Understand.