Those drugs were recovered during an operation carried out by the police on 1 August 2020 in the vicinity of the East Sun Industrial Centre in Kwun Tong.
You were observed entering a unit on the 5th floor of that building at midnight on 31 July, in which the police found the drugs placed with other things inside a brown bag. The 69.4 grammes of ‘Ice’ was in 10 resealable plastic bags. 78.6 grammes of the heroin was found in a further 14 resealable plastic bags and the remaining heroin was found in another two plastic bags and seven other packages.
On arrest and caution, you referred to someone else who had asked you to go to the unit to collect the drugs for which you would receive, you said, a reward of $1,500. In fact, CCTV recovered by the police showed that you have brought the brown paper bag into the building on 31 July and then left without it before you then returned.
The estimated street value of the drugs recovered was HK$227,717.
Mr Leung, you are now 40 years of age, single and you were living with your mother at the time of you arrest. You were educated only up to Form 3 but you were previously employed as a transportation worker and as a cook before your last offending. Unfortunately, you have been unemployed since 2017 upon discharge from prison. I am told this was because you struggled to adjust after your imprisonment and that you had some mental health issues for which you sought counselling. I am also told that you had a self-employed project in hand which you could not follow through with. Thereafter, your attempts to seek employment were made more difficult by the social unrest and economic downturn.
You have a criminal record which goes back to 2008 when you would have been 27 years of age. That is in fact quite an old age for a first offence. That first offence was the first of several offences involving drugs.
In 2008, for two counts of possession, you received a Drug Addiction Treatment Centre order. I have not been told how long you were subject to that order but it clearly did not work as you were before the court again in May 2009 for trafficking in dangerous drugs. For that offence, the trafficking in dangerous drugs, you received a total sentence of 56 months’ imprisonment from the District Court. That offending in early 2009 must have been shortly after your release from DATC, and I have to assume that very little time was spent on remand before sentence. It follows that you must have been discharged from prison for the drug trafficking offence at some time in 2012, which was shortly before you committed a further offence. This time conspiracy to possess a false instrument, for which you received a 2 year sentence of imprisonment from the District Court in 2013.
I do not know whether you were found guilty after trial or whether you pleaded guilty to that offence, but giving you the benefit of the doubt, and looking at the timing of your last offending in May 2015, you must have re-offended almost immediately upon discharge from prison.
For that offence of possession of dangerous drugs, you received a further 6 months’ imprisonment. But that sentence was passed upon you before the Kowloon City Magistrates’ Court just days before you appeared before the District Court for your second offence of trafficking in dangerous drugs. And for that offending, you received a sentence of 40 months, 37 months of which was to be served consecutively to the 6 months’ sentence for possession earlier that month, making a total of 43 months.
You were last discharged from prison on 18 May 2017 and appear not to have been apprehended since that date until you were caught committing this offence on 1 August 2020.
Ms Wong has asked the court not to take your previous criminal record into account when considering the appropriate sentence today. But that pattern of offending which I have just described shows a total disregard for the law. She tells me for this offending that you are simply doing a favour for a friend and asked for leniency in respect of your recidivism, that means re-offending.
Similarly, whilst accepting that there would have been a latent risk in respect of the two drugs you accept you trafficked in, she asks the court not to enhance your sentence by more than a nominal amount. This is a cocktail of drugs. You were trafficking in 69.4 grammes of ‘Ice’ and 81.5 grammes of heroin, how then should you be sentenced?
The 69.4 grammes of ‘Ice’ falls to be considered under HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. The sentencing guidelines for ‘Ice’ suggest that between 10 and 70 grammes of ‘Ice’, you should expect a starting point for sentence after trial of between 7 to 11 years. For 69.4 grammes of ‘Ice’, the starting point for sentence after trial would therefore be 11 years.
The 81.5 grammes of heroin falls to be considered under HKSAR v Lau Tak Ming [1990] 2 HKLR 370(R v Lau Tak Ming?). That suggests that the appropriate starting point for sentence after trial fall between 50 and 200 grammes of heroin is in the range of 8 to 12 years. And so for 81.5 grammes, it would be approximately 8 years and 10 months.
If I were to sentence you on that basis, you would receive a total starting point for sentence of 19 years and 10 months before any aggravating factors, such as your considerable previous offending, were taken into account. Courts are urged to consider other avenues of approach to sentencing when a cocktail of drugs is concerned, especially with a view to totality of sentence, so that the sentence reflects the true culpability and blame worthiness of the defendant.
I have considered all of the relevant tests and do not consider it appropriate to reiterate them here. They are now well-known. In the circumstances of this case, I have chosen to rely upon the ratio test. The total weight of all of the drugs in this case is 150.9 grammes. The ‘Ice’ represents 46 per cent of that total and the heroin represents 54 per cent.
If it were all ‘Ice’, it would attract a starting point for sentence of 12 years and 5 months. If it were all heroin, it would attract a starting point for sentence of 10 years and 9 months. But interestingly, 46 per cent of the ‘Ice’ sentence, which I had mentioned would be 12 years and 5 months reduces the sentence to 5 years and 9 months. And yet, 54 per cent of heroin from that sentence I have mentioned of 10 years and 9 months, 54 per cent is also 5 years and 9 months, making a total starting point for sentence of 11 years and 6 months.
Having looked at the three tests, I have reminded myself that the court has been warned not to slavishly apply a strict mathematical approach. And I bear in mind that the guideline tariffs are biased with relatively heavier sentences imposed on the trafficking of lesser amounts as a means of deterrence. But I do consider that 11 years and 6 months appropriately reflects the culpability of trafficking in the ‘Ice’ and the heroin.
I must, however, also take into consideration the fact that the seizure of two or more drugs of at the same time, even if separately packaged and not in a prepared mixture, may allow a trafficker to cater for a wider market. And more importantly, the effect on users of a combination of drugs where it has been said that, in certain circumstances, a combination of drugs may have a more serious effect on drug abusers than taking the drugs individually. This is an aggravating factor for which you will receive a further 6 months’ imprisonment, making a total thus far of 12 years.
By far, the most significant aggravating feature is your previous offending, its nature and its timing. I intend to increase your sentence to mark the fact that you have no respect for the court or for your fellow man by your total disregard for the law. I have no doubt that you will simply continue to offend both to feed what I suspect will be your future habit and to make a living. It must be made clear to you and others that to continue to offend in this manner will be rewarded with ever greater sentences. In doing so, I have regard to the principle of totality and have considered the nature of the drugs and the circumstances of your background and your offending.
I intend to enhance your sentence by a further 1 year. That is, a total of 13 years in all.
You will, of course, Mr Leung, receive a discount for your early plea of one-third. And you will therefore go to prison for 8 years and 8 months.