HKSAR v. Leung Tsz Man

HCCC 256/2019

[2020] HKCFI 715

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 256 OF 2019

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

The defendant pleaded guilty before a magistrate to two charges of trafficking in dangerous drugs and was committed to the Court of First Instance for sentence. In sentencing, I have considered the whole circumstances of the case, including its nature and facts, in particular the nature and quantity of the dangerous drugs concerned, background of the defendant and mitigation put forward on her behalf.

The facts of the case may be summarized as follows: the defendant was intercepted by police in the vicinity of the building in which she lived. Upon search of the defendant, a cigarette box was found inside her handbag. Inside the box, one plastic bag containing cocaine, which is the subject matter of Charge 1, was found.

Under caution, the defendant said the drug was for her own consumption. The defendant was then escorted back to her home. Upon search, the dangerous drugs, which are the subject matter of Charge 2, were found. Two digital scales containing traces of cocaine and two bundles of transparent resealable plastic bags were also found. Other items found included a metal pot, scissors, hammer, metal stick, spoon, cotton swab, chopsticks and plastic plates. All of these items contained traces of cocaine.

I was told that the defendant is 28 years of age. She was educated up to secondary 4 level and had worked as a saleslady. She is not married but has a son three years old. The son’s father had left her before she gave birth to the boy.

She is not a first-time offender. In 2011, for a charge of possession of dangerous drugs, she was sentenced to DATC. In 2013, for a charge of attempted trafficking in dangerous drug, she was sentenced to 5 months’ imprisonment. Later in the same year, for a charge of money laundering, she was sentenced to an imprisonment term of 2 years and 9 months.

In mitigation, learned counsel for the defence, Ms Chan, urged the court to take into account that the defendant had pleaded guilty at the first opportunity. She told the court that the defendant, as a single mother, was under heavy economic pressure and it was under such circumstances that she succumbed to the temptation of an offer of a reward of $50,000 in engaging in this act.

The defence also submitted letters from the defendant’s mother and younger brother. Both said that the defendant is a responsible member of the family and a caring mother. A ministry secretary also wrote a mitigation letter for the defendant. All believe the defendant is now remorseful and plead leniency on her behalf. The defence also submitted an assessment report of the defendant’s son which showed that he is generally normal but is low in development of speech ability.

In this case, Charge 1 involved 18.2 grammes of cocaine. The Court of Appeal held in AG v Pedro Nel Rojas [1994] 2 HKCLR 69 that the guideline for sentencing cases of trafficking in heroin inR v Lau Tak Ming [1990] 2 HKLR 370 is applicable in cases of trafficking in cocaine since the narcotic content of the two drugs are very closely alike in the degree of harm. In Lau Tak Ming, it was held that if the narcotic content is between 10 and 50 grammes, an imprisonment term of 5 to 8 years should be considered. I see no reason to depart from the tariff. For Charge 1, I adopt a starting point of 5½ years.

Charge 2 involved two types of dangerous drugs: cocaine and the drug commonly known as ‘Ecstasy’. The narcotic content of cocaine involved in Charge 2 was 1,019.66 grammes. Lau Tak Ming only provided for tariff in cases where the quantity of heroin trafficked in was up to 600 grammes. In the subsequent case of HKSAR v Abdallah Abbas, CACC 304/2008, the Court of Appeal held that if the narcotic content was between 600 and 1,200 grammes, the sentence to be considered is 20 to 23 years. I see no reason not to adopt this guideline which has been in force since 2009.

In my judgment, a starting point of slightly more than 22 years is appropriate for the quantity of cocaine involved in Charge 2. Since more than one type of drug was involved in Charge 2, I have had regard to the guidance provided by the Court of Appeal in cases such as HKSAR v Yip Wai Yin [2004] 3 HKC 369, HKSAR v Yau Ka Ming, CACC 144/2013, HKSAR v Chan Yuk Leong, CACC 318/2013 and HKSAR v Cheung Wai Man, CACC 258/2017.

Cocaine was obviously the prominent drug. I will adopt the combined approach and check whether the starting point to be adopted is fair and appropriate by testing it against the absurdity test, the conversion test and the ratio test. I note that if all the drugs are to be treated as cocaine, the total quantity, which was about 1,059 grammes, will attract a starting point of slightly more than 22 years and 3 months. But probably there is a typing error here. I think it should be slightly more than 22 years.

‘Ecstasy’, however, carries lesser sentence than cocaine. There were 39.4 grammes of ‘Ecstasy’. In SJ v Hii Siew Cheng [2009] 1 HKLRD 1, it was held that if the quantity of ‘Ecstasy’ trafficked in is 10 to 50 grammes, a sentence of 4 to 6 years should be considered. A starting point of slightly less than 5½ years is appropriate for the quantity of ‘Ecstasy’ in the case.

As said, the quantity of the cocaine involved in Charge 2 calls for a starting point of slightly more than 22 years. In considering the appropriate starting point for Charge 2, apart from taking into account the quantity of the two drugs, I have to have regard to the two possible aggravating features of a wider market and the effect on users of combination of dangerous drugs. In all the circumstances, I consider it appropriate to adopt 22 years and 3 months as the starting point for Charge 2.

There are two charges. I have to consider totality. In the circumstances like the present case, it is appropriate to take into account the total quantity of dangerous drugs involved. The total quantity was 1,037.86 grammes of cocaine and 39.4 grammes of ‘Ecstasy’. Having considered the whole of the circumstances, I am of the view that the ultimate overall starting point for the two charges should be 22 years and 3 months.

I note that the defendant has a previous conviction for trafficking which from the sentence imposed appears to be not a serious case. I do not consider any enhancement in the sentence is called for.

The defendant pleaded guilty before a magistrate. She is entitled to a one-third discount for this reason. I have considered the whole circumstances, including what learned defence counsel said on the defendant’s behalf. I am satisfied that the defendant is remorseful. I also understand the difficulties a single mother can face, including the financial pressure. Having regard to the authorities, in my judgment, one‑third is the extent of discount the defendant is entitled to.

Defendant, please stand up. For the reasons I have mentioned, I sentence you, for Charge 1, to an imprisonment term of 3 years and 8 months; for Charge 2, 14 years and 10 months. Having regard to totality, I order the two sentences to run concurrently. You are to serve a total sentence of 14 years and 10 months for the two charges.