HKSAR v. Leung Tsz Fung

DCCC 617/2019

[2020] HKDC 416

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 617 OF 2019

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REASONS FOR SENTENCE

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1.This is a case of police stop and search leading to the discovery of drugs.

2.The defendant, a 23-year-old young man with no previous convictions, was seen loitering outside a convenience store in Oi Tung Shopping Arcade, Shau Kei Wan in the small hours on 14 April 2019.

3.He walked away on seeing the approach of police officers who eventually intercepted the defendant and conducted a search on him. They found from his left front trouser pocket a plastic bag containing drugs (6.36g of a solid containing 5.94g of cocaine) which were put in 39 separate smaller re-sealable plastic bags.

4.He acknowledged ownership of the drugs to the police but claimed that he bought it for personal use. He also had about $5,000 cash on him at the time. The drugs seized were estimated to have a street value of $7,200.

5.A subsequent house search at his home in Tai Po yielded nothing.    

6.The defendant pleaded guilty before me to one count of drug trafficking.

7.In mitigation, the court heard that the defendant lived alone in a public housing unit in Tai Po as he lost his father to liver illness in 2003 while his mother, a Thai national, remarried in 2019 and had since moved back to Thailand leaving her son to his own devices.

8.Not doing good at school, he dropped out at Form 4 and had drifted from job to job over the years finally ending up a construction worker earning about $26,000 a month.

9.In those letters written by his relatives, they all spoke highly of the defendant who, in their eyes, is a kind-hearted and good-natured person. He would not have committed the offence, had it not been for his association with bad peers, they said. Given his young age, clean record and rather unusual background, they beg the court for leniency.

10.In his letter to the court which is written in English, the defendant expressed remorse for what he had done, and stated that he learned from his mistakes and promised not to repeat them.  He used to box and would continue to box to become a champion one day so he had to stay healthy.

11.Apart from urging the court to give the defendant the usual one-third discount for his timely plea, counsel for the defendant, Mr. Jim, asked the court to further reduce the sentence by taking into account the fact that 30% of the drugs in question were for the defendant’s own consumption.

12.As the authorities now stand, it has to be a significant proportion of the drugs for personal use before the court would consider a further reduction in sentence.

13.In Kong Tat Lung [2018] 5 HKLRD 635, the Appellate Court said if only a part of drugs were for self-consumption, a discretionary discount could be given and emphasised that under normal circumstances, it was not appropriate for the defendant to use that as a ground of appeal to ask for a further reduction from the Court of Appeal.

14.Turning back to the present case, 30% does not, in my view, qualify to be “significant proportion”; whether the court would be prepared to knock a few months off because the defendant is a drug user and therefore part of the drugs were for personal use, I would not because I have doubt about his assertion of self-consumption.

15.The defendant gives the court the barest details of his being a drug abuser, for example, he only tells the court that he began using cocaine about six months before this incident, apart from that there is no other supporting evidence such as urine tests or  prior drug convictions etc.

16.He now tells the court that 30% of the drugs used by him personally, is this worthy of belief?

17.There are 39 packets of drugs in the present case, 30% would give rise to 11.7 packets, it seems not right even at first glance because it speaks about a fraction of a packet; in the normal course of events, it would be expected to express in terms of number of packets rather than percentage of drugs.  Obviously, 30% is something the defendant plucked out of thin air and is not worthy of belief at all.  

18.There are sentencing guidelines for trafficking in this type of drugs – for trafficking up to 10g, a term of 2 to 5 years is the norm to be considered. Based on the amount the defendant admitted to trafficking i.e., 5.94g, I would adopt 45 months as the starting point, and reduce it to 30 months to reflect his timely plea.

19.The higher court has said time and again that facing with serious offences such as drug trafficking, young age and a previous clear record will count for very little.

20.Insofar as his mitigation is concerned, apart from his guilty plea, there isn’t anything of substance. There being no reasons for further reduction in sentence, the defendant is therefore sentenced to 30 months’ imprisonment.