HKSAR v. Leung Chung Kau

HCCC 50/2019

[2019] HKCFI 1754

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 50 OF 2019

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

Background and the facts

On 18 February 2019, the defendant pleaded guilty in the Eastern Magistrates’ Courts to two charges of trafficking in a dangerous drug, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134. He was committed to the Court of First Instance for sentence. This morning, the defendant confirmed before me his pleas and his acceptance of the Summary of Facts.

Briefly, on 26 April 2018, the defendant was intercepted by the police at the lift lobby of his home premises. At that time, he was carrying a recycle bag inside which was later found the subject of the first charge, that is, a total of 5 kilogrammes of a solid containing 4.12 kilogrammes of cocaine. Under caution, the defendant admitted that he sold the cocaine for monetary reward.

Subsequently, the defendant was taken back to his home premises. Beneath the sink in the kitchen, a nylon bag was found. Inside the bag, the subject of the second charge, that is, a total of 27.99 kilogrammes of a solid containing 23.1 kilogrammes of cocaine were found. Under caution, the defendant again admitted that the drugs were his and he intended to sell them. The defendant repeated similar admissions when interviewed by way of a video-recording later at the police station and he supplemented that as he was in need of money, he therefore agreed to store and deliver the drugs for others.

All the cocaine in question were in the form of blocks. The estimated street value of the first lot of drugs was about HK$4.7 million and that for the second lot was about HK$26.3 million.

The defendant’s background and mitigation

The defendant was born in Hong Kong and is now aged 47. He was educated up to Form 1 level and he has one previous conviction of possession of a dangerous drug for which he was fined in 1997. The defendant was unemployed at the time of the offence but he had worked as a transportation worker, air-conditioning technician and driver. He was single when arrested but has got married while he was remanded for the present charges. Prior to this offence, the defendant financially supported his 75-year-old mother. The defendant’s close family members were all in court to support him during this hearing.

In mitigation, Ms Annie Lai mainly prayed in aid the defendant’s guilty plea. She also urged the court to consider passing as lenient a sentence as possible given that the defendant is now fully remorseful. Letters written by the defendant’s wife, the wife’s daughter and the defendant’s own daughter were given to the court. All commented that the defendant looked after the family well and that he only committed the present offences out of stupidity.

Sentencing considerations and the sentence

The tariffs for trafficking in cocaine were the same as those laid down for heroin in R v Lau Tak Ming & Others [1990] 2 HKLR 370, and in HKSAR v Abdallah [2009] 2 HKLRD 437. For trafficking between 4,000 grammes and 15 kilogrammes of cocaine, the sentence is a term of imprisonment of between 26 to 30 years and that for a quantity which is over 15 kilogrammes, the sentence is at the sentencer’s discretion.

In this case in which the two lots of drugs were found on the same day and that the facts in respect of the two charges were closely linked together, the established principle is to add up the two lots of drugs in order to arrive at an overall starting point.

The drugs involved in the two charges were a total of 32.99 kilogrammes of a solid containing 27.22 kilogrammes of cocaine. Such was a very large quantity and this is a very serious offence. Having considered the facts and all the relevant circumstances as well as that drug sentencing is not purely mathematical calculations although there must be a logical and proportional connection between the quantity of the drug and the sentence, I take the view that an overall starting point of 31½ years for the two lots of drugs should sufficiently reflect the criminality of the defendant in this case.

The defendant pleaded guilty at the first available opportunity and maintained his plea throughout, I would give him a full one-third reduction for his plea. As to his personal circumstances, while I appreciate that he may have all along been a filial son and a very loving father, however, such do not constitute any powerful mitigation warranting a further reduction of sentence in this serious case. Nonetheless, I accept that he is now fully remorseful.

In relation to Ms Lai’s submission that the defendant should be treated as one having a clear record because his previous possession of dangerous drug conviction was a spent one, I can say this: I have not taken into account his past record as anything adverse to him. However, even treating the defendant as one with a clear record, a clear record on its own is not a mitigating factor in this serious trafficking offence.

31½ years reduced by one-third is 21 years’ imprisonment. Therefore, I sentence the defendant to a term of 21 years for Charge 1 and also a term of 21 years for Charge 2. However, as 21 years is a term arrived at by adding the drugs in the two charges together, I order that both terms are to be served wholly concurrently, resulting in a total term of 21 years.

(Proceedings from 10.18 am not required)

Court adjourns - 10.21 am

Court resumes - 11.18 am

Accused present. Appearances as before.

(Proceedings to 11.35 am not required)

COURT: Shortly after pronouncing sentence on the defendant, I was informed that the defendant was sentenced to a term of 28 months’ imprisonment upon his own plea on 25 February 2019 for a money laundering offence in the District Court. The parties accept that the defendant committed the present drug offences whilst on bail in relation to the money laundering offence. That is, of course, a factor which would normally aggravate the sentence.

However, given the lengthy term I imposed on the defendant for the drug offences and given that there is no indication in the summary of facts of the money laundering charge that the proceeds were drug proceeds, I would not enhance the term of 21 years because of this factor of commission of offence whilst on bail in relation to another offence.

Further, as the defendant is now serving a term of 28 months for the money laundering charge, I order that his 21-year term for the drug offences is to be served wholly concurrently with his current 28-month term. Although the money laundering and the drug offences are different offences and took place at different times, again, given the very lengthy term I imposed for the drug offences, I consider it appropriate to order that the 21-year term be served wholly concurrently with the 28-month term which he is now serving.