HKSAR v. Leung Chiu Yun

HCCC 183/2022

[2023] HKCFI 1889

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 183 OF 2022

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BETWEEN

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REASONS FOR SENTENCE

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1.The defendant has pleaded guilty to one count of trafficking in dangerous drugs contrary to s4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The second count, that of attempting to traffic in a dangerous drug contrary to s4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 and s159G of the Crimes Ordinance, Cap 200 is to lie on the file not to proceeded with without the leave of this Court or the Court of Appeal.

2.On 10 March 2018, the police were on mobile patrol when they observed two men, acting in a suspicious manner, enter 212 Cheung Sha Wan Road in Sham Shui Po at 2:30 a.m. When they entered the building, the police found the defendant and three other men in Room 1, on the 8^th Floor of the building.  Upon interception, the defendant was holding 9.54g of ICE.  Upon search of the room, a further 28 plastic bags of ICE were recovered from various areas as well as a bag of herbal cannabis and a bag of N-isopropylbenzylamine. There was also evidence of distribution and consumption as well as 7 mobile phones.

3.Upon arrest and caution the defendant admitted to trafficking in the dangerous drugs recovered. Under interview he stated that the three other men had nothing to do with the drugs. The total street value of the drugs recovered was HK$259,637.

4.The defendant is a mature man of now 68 years of age and was educated up to primary level only. In his antecedent statement the defendant maintained that he was unemployed at the time of his arrest, single and lived alone. Mr Yuen however submits that he is in fact married and his wife lives on the mainland. He also submits that the defendant was a Hawker who lived on social assistance. As for his state of health, the defendant had stated that he was a drug addict since 1986 without more. Mr Yuen now submits that his client has a number of long term health problems including a heart and lung condition. The defendant has a criminal record dating back to 1986, which includes a number of matters of possession between 1986 and 1989 and thereafter a series of offending which was unrelated to drugs. His last period of imprisonment was in 2010. There are no matters on his record since that date.

5.Mr Yuen, on behalf of the defendant, submits that this plea was offered to the prosecution on at the earliest opportunity once a new legal team were appointed after his appeal, which was before a new trial date was fixed. Mr Yuen submits that he should therefore be granted at least a 25% discount for his plea. Considering the fact that he has now entered a plea and admitted his guilt, I can see no basis upon which he is entitled to any greater discount.

6.426.40g of ICE was recovered along with 4.05g of amphetamine making a total of 430.45g of amphetamine in total with 11.10g of herbal cannabis.  This is technically a cocktail of drugs and therefore I have considered the absurdity, conversion and ratio tests as described by HKSAR v Chan Yuk Leong CACC 318/2013 and HKSAR v Yip Wai-yin & Anor [2004] 3 HKC 367 as well as other relevant authorities. However, in the circumstances of this case, I take the view that the proper way to sentence this matter is to consider it first and foremost as all ICE with a negligible amount of herbal cannabis. 

7.The sentencing guideline for trafficking in ICE is HKSAR v Tam Yi-chun [2014] 3 HKLRD 691. For trafficking in 430.45g of methamphetamine hydrochloride the starting point after trial would be 17 years 2 months. For the Herbal Cannabis, I will enhance the sentence by just 1 month and for the latent risk I will enhance the sentence by 3 months making 17 years and 6 months in total. There is very little information available to me to assess whether the defendant had any role other than to store and distribute the drugs to others. His financial circumstances negate the suggestion that he had any higher or more substantial role and I will not therefore aggravate that sentence further. He will of course receive a full a 25% discount for his plea even though not entered at the outset.

Conclusion

8.Upon Count One the defendant will go to prison for a period of 13 years 1 month. 

Mr Isaac Guan, SPP(Ag.), on behalf of the Department of Justice, for the HKSAR

Mr Ernest Yuen, instructed by Messrs Benjamin Au & Billy Chan, Solicitors, assigned by the Director of Legal Aid, for the defendant