HKSAR v. Leung Wai-lun

DCCC 586/2022

[2023] HKDC 255

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 586 OF 2022

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REASONS FOR SENTENCE

The defendant faces a "simple possession" charge (Charge 1)  and a "trafficking" charge (Charge 2).

2.He pleaded guilty to Charge 2.  I granted the prosecution's application to leave Charge 1 in the court file; not to be proceeded against the defendant without leave of court.

Summary of Facts

3.About 10:10 p.m. on 16 November 2021, upon seeing the defendant coming out of Urbanwood Ap Lei Chau ("the Hotel")  situated at No.29 San Shi Street, Ap Lei Chau, PC 11618 stopped him for enquiry at the junction of San Shi Street and Wai Fung Street.  Upon search, a key card to Room 1204 of the Hotel ("the Room")  was found on the defendant.

4.Police officers escorted the defendant back to the Hotel.  They entered the Room using the key card found on the defendant.  The Room was searched.  The Police found 20 bottles of Watsons Water on a desk.  They then found a transparent resealable plastic bag concealed inside the bottle cap of each bottle[1].  In other words, a total of 20 transparent resealable plastic bags were found; they contained a total of 7.37 grammes of a solid containing 4.89 grammes of cocaine (collectively E1).

5.A bag which contained an electronic scale and 3 bundles of empty transparent resealable plastic bags was also found in the Room.

6.Under caution, the defendant said the substance concealed in the bottle caps were cocaine for his self-consumption.

7.In his video recorded interview, the defendant admitted that the 20 plastic bags found inside the 20 bottles of water contained cocaine for his self-consumption.  He purchased the cocaine at $500 to $600 per pack.  He would consume 1 to 2 packs 3 times a week.  He concealed the cocaine inside the bottle caps to avoid seizure by the Police.  He also admitted possession of the 3 bundles of plastic bags and the electronic scale.  He booked the Room under his name and had been living there since about 12 November 2021.

8.The estimated street value of E1 was about $12,883.

9.The defendant now admits that he possessed E1 for the purpose of unlawful trafficking.

Mitigation & Sentence

10.The defendant is 47 and single.  He has 10 conviction records which included 1 offence of "Trafficking".  Defence counsel Ms. Lai informed me that the defendant has previously worked as a lorry attendant and a construction worker.  Owing to the social events and the pandemic, he could only work as a decoration worker on a casual basis since 2019.  A letter from the defendant's elder sister was placed before me; its contents are duly noted.

11.In mitigation, Ms. Lai submitted that the defendant was an ICE addict at the time of the offence[2].  He trafficked in cocaine to support his ICE habit.  Ms. Lai stressed that the defendant is remorseful and is determined to turn a new leaf.  He wishes to look after his aged parents upon release from prison.

12.Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious)  is no mitigating factor for committing a crime, needless to say engaging in drug trafficking to feed one's drug habit.  Drug abuse has always been a problem in our society.  A

clear message must be conveyed to the general public that "drug trafficking" is a serious crime and that drug traffickers would most certainly be punished by long-term imprisonment, so that there is a deterrent effect.

13.The Court of Appeal has laid down clear sentencing guidelines for trafficking in cocaine (see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 and The Queen v Lau Tak Ming & others [1990] 2 HKLR 370).  For up to 10 grammes, the sentence ranges from 2 to 5 years' imprisonment. 

14.The defendant trafficked in 4.89 grammes of cocaine.  Applying a strict arithmetical approach, the appropriate starting point is 3.5 years.  I have decided not to raise the starting point even though the defendant has a similar conviction back in 2006.  I note that he has remained trouble free since that last conviction.  I adopt a starting point of 3.5 years' imprisonment.  With the timely guilty plea, the sentence is reduced to 28 months.   Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 28 months' imprisonment for Charge 2.