HKSAR v. Leung Choi Ying, Cherry and Another

HCCC 37/2023

[2024] HKCFI 72

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 37 OF 2023

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REASONS FOR SENTENCE

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Charges and Pleas

1.The two defendants, Leung Choi-ying, Cherry (D1)  and Ma Yiu-hon (D2), both pleaded guilty to the respective charges against them and admitted the facts pertaining to those charges in the court below.  They confirmed their guilty pleas and admissions of the Summary of Facts before me this morning and they were convicted as charged accordingly.  The charges they pleaded guilty to are as follows: - 

Charge 1

“Trafficking in dangerous drugs” against D1 and D2. Charge 1 concerns: -

(1)  9.4 grammes of a solid containing 8.75 grammes of cocaine; and

(2)  0.14 grammes of a solid containing 0.12 grammes of ketamine.

Charge 2

“Trafficking in dangerous drugs against D2 only. Charge 2 concerns: -

(1)  17.5 grammes of a solid containing 15.7 grammes of cocaine; and

(2)  0.17 grammes of a crystalline solid containing 0.16 grammes of methamphetamine.

Charge 3

“Possession of dangerous drugs” against D1 and D2. Charge 3 concerns: -

(1)  0.5 grammes of a solid containing 0.4(0.12?)  grammes of cocaine;

(2)  0.41 grammes of a solid containing 0.4 grammes of cocaine;

(3)  17 mL of a liquid which contained 0.01 grammes of a solid upon drying, containing methamphetamine;

(4)  38 mL of a liquid which contained 0.02 grammes of a solid upon drying, containing cocaine;

(5)  54 mL of a liquid which contained 0.02 grammes of a solid upon drying, containing methamphetamine; and

(6)  0.34 grammes of a crystalline solid containing 0.33 grammes of methamphetamine hydrochloride.

The Summary of Facts

2.The Summary of Facts dated 30 January 2023 has already been admitted by D1 and D2 and reads as follows: -

“1. On 21 May 2021, at 2240 hours, DPC11956 (PWI), DPC22476 (PW2), DPC14513 (PW3), DPC6674 (PW4)  and other police officers mounted an anti-narcotics operation in the vicinity of Hotel Madera, 1 Cheong Lok Street, Jordan, Kowloon.

Count 1 & Count 2

2. At 2358 hours, PW 1 observed in the CCTV of Hotel Madera that DI and a male (i.e. D2)  left Room 701 of Hotel Madera ("Room 701")  and entered lift no. 3. D1 carried a shoulder bag (EXH1), whereas D2 carried a shoulder bag and a recycle bag. PW2-4 and other officers subsequently intercepted D1-2 at the lift on G/F and brought them to the Staff Room on 3/F for a search. Meanwhile, other officers were deployed to guard Room 701. At 0006 hours, the following items were found in D1-2's possession respectively:-

Inside D1's coin bag (EXH2)found in D1's shoulder bag (EXH1)

(1)  3 plastic bags and 2 plastic containers containing a total of 9.4 grammes of a solid containing 8.75 grammes of cocaine (EXH3);

(2)  1 paper packet containing 0.14 gramme of a solid containing

0.12 grammes of ketamine (EXH4);

(3)  1 metal spoon (EXH5);

(4)  1 resealable plastic bag containing a number of empty resealable plastic bags (EXH6);

Inside EXH1

(5)  2 key cards of Room 701 (EXH7);

(6)  Cash for HK$8,485.2 (EXH8);

(7)  1 Samsung smartphone (EXH9);

Inside D2's underpants

(8)  1 resealable plastic bag wrapped in a piece of tissue paper

(EXH10)  containing EXH11-12

(9)  8 plastic bags containing a total of 17.5 grammes of a solid containing 15.7 grammes of cocaine (EXH11);

(10)  1 plastic bag containing 0.17 gramme of a crystalline solid containing 0.16 gramme of methamphetamine hydrochloride (a salt of methamphetamine)  (ICE)  (EXH12);

From D2's possession

(11)  1 key card of Room 701 (EXH13)

3. Upon arrest, D1 under caution indicated that the drugs belonged to D2 and that D2 asked her to carry them (呢啲毒品係馬耀漢(D2)  嘅 ，佢叫我幫佢帶嘅). On the other hand, D2 admitted under caution his knowledge of the drugs and he intended to sell them (我知呢啲係毒品，我打算拎去賣嘅，比次機會啦)

Count 3

4. DI-2 were escorted back to Room 701 for a search under a search warrant. The following items were found in different areas inside Room 701: -

On a table next to the bed

(1)  1 plastic bag containing 0.5 gramme of a solid containing

0.12 gramme of cocaine (EXH18);

(2)  1 resealable plastic bag containing 0.41 gramme of a solid containing 0.4 gramme of cocaine (EXH19);

(3)  1 electronic scale (EXH20);

On top of a Pink box on the floor next to the bed

(4)  1 plastic tray (EXH21)  containing EXH22-27

(5)  2 plastic tube (EXH22);

(6)  3 metal pins (EXH23);

(7)  2 bamboo skewers (EXH24);

(8)  2 pairs of tweezers (EXH25);

(9)  1 metal spatula (EXH26);

(10)  2 lighters (EXH27);

On a cupboard near the window

(11)  1 inhaling device containing 17 mL of a liquid, which contained 0.01 gramme of a solid upon drying, containing methamphetamine (EXH28);

(12)  1 plastic bottle and 1 plastic straw fitted into a rolled metal foil containing 38 mL of a liquid, which contained 0.02 gramme of a solid upon drying, containing cocaine (EXH29);

(13)  1 inhaling device containing 54 mL of a liquid, which contained 0.02 gramme of a solid upon drying, containing methamphetamine (EXH30);

(14)  A number of empty resealable plastic bags (EXH31);

On the floor near the bed

(15)  1 stuffed toy (EXH32)  containing EXH33; and

(16)  1 plastic bag containing 0.34 gramme of a crystalline solid containing 0.33 gramme of methamphetamine hydrochloride (a salt of methamphetamine)  (EXH33).

5. D1 under caution claimed that all of the said items belonged to D2, and she had no involvement with them (呢啲全部都係馬耀漢(D2)  (呢啲毒品同工具都係我嘅，都係打算拎去賣嘅，唔關我事). D2 admitted his ownership of the drugs and paraphernalia, and he intended to sell them (呢啲毒品同工具都係我嘅，都係打算拎去賣嘅).

6. 1 Samsung smartphone (EXH14), 1 Huawei smartphone (EXH15), 1 Octopus card (EXH16)  and cash for HK$7,908 (EXH17)  were seized from D2's possession.

Cautioned admissions of DI

7. On 22 May 2021, PW1&3 conducted a VRI with D1. D1 under further caution stated, inter alia, that:-

(1)  D2 asked D1 to keep the coin bag, but D1 did not know where the coin bag and the drugs came from;

(2)  During the VRI, after being shown the drugs found inside the coin bag, D1 thought that the drugs were cocaine because she had tried it before;

(3)  D1 had known D2 for a few months. D2 had visited her at Room 701;

(4)  Room 701 was registered under D1's name, and D1 had stayed there for 2-3 months, costing $400 to $700 per day. D1 and D2 shared the cost;

(5)  DI worked as a food courier earning at least HK$8,000 per month.

Cautioned admissions of D2

8. On 22 May 2021, PW 2-3 conducted a VRI with D2. Under further caution, D2 stated that: -

(1)  D2 was a casual worker and earned around HK$10,000 per month;

(2)  D2 was instructed by a male friend over the phone to pick up 1 pack of cocaine (weighed 24 grammes)  from an unknown male at Nanking Street at around 2300 hours on 21 May 2021, to repack the cocaine into 8-9 packs at Room 701, and to sell 18 grammes to a customer on Shantung Street, Mongkok. D2 had trafficked in 24 grammes of cocaine for this friend thrice within the past months. D2 did not have enough money for drugs and was promised the remaining 6 grammes of cocaine as his reward each time. This male friend also gave D2 a black Samsung mobile phone for the drug trafficking communication. D2 did not have any detail of his friend and the unknown male;

(3)  At the time of interception, D2 had around 18 grammes of cocaine packed into 8 packs and 1 pack of methamphetamine, all hidden inside his underpants. D2 bought around 1 gramme of methamphetamine from someone earlier for HK$500, and intended to bring the drugs to customers;

(4)  D1 was D2's girlfriend. D1-2 had known each other for around 3 weeks. D2 had visited D1 and consumed drugs with her at

Room 701 for a total of around 15 days. D1 had rented Room 701 for few months, but D2 did not know how much the room costed and who paid for the room. D1 had a room key card;

(5)  D2 put 5 packs of cocaine and 2 pack of ketamine into a dog-shaped coin bag, and asked D1 to keep them. D2 intended to consume part of the drugs himself and share some with his friends. The cocaine here was his previous reward;

(6)  D2 admitted his ownership of the 3 inhaling devices, which were used for the consumption of methamphetamine and cocaine; and

(7)  The HK$7,908 seized from him were his salary and gambling winnings. The other Samsung mobile phone was used for casual work and contacting friends.

9. On 22 May 2021, later on, PW2-3 conducted another VRI with D2.

D2 under caution stated, inter alia, that: -

(1)  D2 used the packaging paraphernalia found inside Room 701 for packaging and consuming cocaine. His friend gave him the paraphernalia, and D2 bought some of the resealable plastic bags himself;

(2)  D2 bought the cocaine and methamphetamine found inside Room 701 for around $1,000 per gramme and $500 per gramme respectively, for his own consumption;

(3)  D2 bought the 3 inhaling devices for around $100 each for consuming drugs; and

(4)  D2 bought the methamphetamine found inside the stuffed toy for his own consumption.

Other investigations

10. The value of the dangerous drugs in this case are estimated below:

i. cocaine powder: HK$34,147 (27.83 g x $1,227)/crack cocaine: $47,200 (27.83 g x $1,696);

ii. ketamine: HK$74 (0.14 g x $525); and

iii. methamphetamine: HK$294 (0.54 g x $545)

11. D1 registered and checked in Room 701 between 31 January 2021 and 23 May 2021.

12. Screening of D1-2's smartphones by the police revealed that there were drug trafficking related messages between D1 & D2, and with their customers.

13, Government Chemist confirmed the contents of dangerous drugs in EXH3, 4, 11, 12, 18, 19, 28, 29, 30 & 33 as set out above. The total dangerous drugs in each count are summarised below:

(1)  8.75 grammes of cocaine & 0.12 gramme of ketamine (inside D1's coin bag)  under Count 1 against D1 & D2;

(2)  15.7 grammes of cocaine & 0.16 gramme of ICE (in D2's underpants)  under Count 2 against D2; and

(3)  0.52 grammes of cocaine (solid), 0.33 grammes of ICE (solid), 2 inhaling devices containing traces of ICE, and 1 plastic bottle and 1 plastic straw fitted into a rolled metal foil containing traces of cocaine (inside Room 701)  against D1 & D2.

14. D1 now admits that she trafficked in the dangerous drugs under Count 1, and possessed the dangerous drugs under Count 3. D2 admits that he trafficked in the dangerous drugs under Count 1 and Count 2, and possessed the dangerous drugs under Count 3.”

Antecedent and Criminal records

D1

3.D1 is 35 years of age and was born in Hong Kong.  She received education up to Form 5. She is single and lived alone before the offence.  She used to work as a food delivery worker with a monthly income of $8,000. 

4.She has four previous convictions of “possession of dangerous drugs” and one previous conviction of “trafficking in dangerous drugs” between 2007 and 2017. She has been sentenced to the Drug Addiction Treatment Centre for three times in the past and in her last conviction of “trafficking in dangerous drugs”, she was sentenced to 42 months’ imprisonment in 2017 and was last discharged from the prison in May 2019. 

D2

5.D2 is 45 years of age.  He received education up to Form 3 in Hong Kong.  He was a courier with a monthly income of $8,000 to $10,000.  D2 was convicted of seven offences between 1996 and 2018, including two “possession of dangerous drugs” charges and four “trafficking in dangerous drugs charges”. 

6.Three of the four “trafficking in dangerous drugs” convictions were sentenced in the High Court.  The first trafficking conviction is in 1999 when he was sentenced to 7½ years.  His third trafficking conviction was in 2014 when he was sentenced to 6½ years and his last conviction was in 2018 when he was sentenced to 5 years. He was last discharged from prison in December 2020. 

Mitigation

D1

7.Mr Adonis Cheung, counsel for D1, told me in mitigation that D1 committed the present offence as she did not have sufficient financial support to herself and also due to her emotional issues.  She resorted to drugs and had been keeping the drugs for her friend. 

8.Owing to her long-term consumption of ketamine, D1 has developed urinary symptoms since 2014.  She also has to attend psychiatric care and as result, she had been receiving disability allowance since 2019. 

9.D1’s father is now over 70 and suffering from long-term heart problem.  He was suffering from a stroke and now remained in the mainland.  Her mother is now over 50 and is still working.  D1 hopes to bring back her father to Hong Kong for treatment and care after she was released from prison. 

10.Letters of mitigation written by D1’s father, one Mr Ng, D1’s friend, a pastor of the Christian Prison Pastoral Association Limited and also herself were submitted. During her present remand, D1 also spent time in studying the Bible and became a Christian. 

11.Mr Cheung told me that D1 had fully cooperated with the authorities after her arrest.  He asked me to take into consideration of D1’s plea of guilty at the first opportunity, her remorse and the minor role played by D1 in this present operation. 

12.Mr Cheung submitted that the starting point for Charge 1 should be 4 years and 7 months after cross-checking the results in the three tests and that is the absurdity test, conversion test and the ratio test plus an adjustment slightly upward because there are two kinds of drugs. 

13.For Charge 3, since there is no guideline sentence for the possession of dangerous drugs, Mr Cheung simply urged the court to consider and impose the most lenient sentence in this charge on the basis that the subject matter of the drugs involved were in very small amounts and the offence as committed on the same occasion as Charge 1 and also the totality principle. 

14.Mr Cheung asked me to follow the six-step approach in the case HKSAR v Herry Jane Yusuph [2020] HKCA 974 and take into consideration the totality principle in determining the total sentence for these two charges. 

D2

15.Mr Paul Leung, counsel for D2, told me in mitigation that D2 was a divorcee and he has a 17-year-old son and a 16-year-old daughter, but he has lost contact with the children since his divorce with his ex-wife in 2006. 

16.Mr Leung emphasised the fact that D2 had been a drug addict for well over 25 years and it was supported by the urine test report prepared by the Correctional Service Department, upon his admission to prison after being remanded in custody.  There was also drug inhaling device found in the hotel room in relation to Charge 3. 

17.He also submitted a mitigation letter written by D2 himself, stating his remorse and the fact that he had kept part of the drugs for his own consumption.  Mr Leung also referred to D2’s claim in his video-recorded interview that he was promised to keep part of the drugs, namely, 6 grammes of cocaine, for his self-consumption in every trafficking operation. 

18.As for the reasons for committing the offences, Mr Leung attributed to D2’s heavy addiction to the drugs.  In order to meet his addiction needs, D2 took the offer by his old colleague nicknamed Ah Sing to deliver the drugs for him and to receive the free use of the drugs. 

19.It was said that D2 was promised by Ah Sing to keep one-third of the cocaine trafficked, usually 6 grammes in the quantity for his self-consumption in every trafficking operation.  As for the other drugs, such as ketamine and ‘Ice’, they would be all delivered to the others. 

20.Mr Leung submitted that D2 was at the lowest level of culpability as he was only recruited to keep the drugs and deliver them as instructed.  Mr Leung also submitted that the court should treat both trafficking charges as a single offence and that the total quantity of different drugs in these two charges shall be counted and considered as a whole in order to reach a fair sentence. 

21.He submitted that for the trafficking in cocaine in Charge 1 and Charge 2, a total of 24.45 grammes is involved according to the case of R v Lau Tak Ming and Others [1990] 2 HKLR 370 and Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69.  For quantity of cocaine between 10 and 50 grammes, it would attract a starting point of between 5 to 8 years’ imprisonment.  Based on the arithmetic calculation, the starting point of 24.45 grammes of cocaine alone would attract a term of around 6 years and 1 months. 

22.For the trafficking in ketamine in Charge 1 and that is only 0.12 grammes. According to the case Secretary of Justice v Hii Siew Cheng [2009] 1 HKLRD 1, the tariff for trafficking in less than 1 gramme of ketamine is at the discretion of the court. 

23.For trafficking in ‘Ice’ in Charge 2 and that is 0.16 grammes,  according to the case of Tam Yi Chun [2004] 3 HKLRD 691, the tariff for trafficking in less than 10 grammes of ‘Ice’ would attract 3 to 7 years’ imprisonment.  Based on arithmetic calculation, the starting point of trafficking 0.16 grammes of ‘Ice’ would attract a term of imprisonment slightly higher than 3 years. 

24.According to the three tests as elaborated in the case HKSAR v Chan Yuk Leong, CACC 318/2013, Mr Leung submitted that if the entire quantity seized is ‘Ice’, which is the most potent drugs, the result would be slightly less than 8 years.  If using cocaine as the base drugs and applying the conversion test, the starting point should be around 6 years and 1.5 months.  The ratio test would also produce a similar result of 6 years and 1.5 months. 

25.Mr Leung submitted that the result of the conversion and ratio tests are similar and were more reasonable and fairer to D2 and asked me to adopt a starting point of slightly over 6 years in both Charges 1 and 2. 

26.As for Charge 3, the possession charge, Mr Leung submitted that given the fact that the weight of the dangerous drugs in this charge were relatively low, only 0.52 grammes of cocaine and 0.33 grammes of ‘Ice’ and they were all found and confined inside the hotel room with the drug-taking device, it was committed on the same date, and in the same hotel room as that of Charge 1, on the principle of totality, the sentencing of this part in relation to Charge 3 is negligible and can be ignored especially when compared with the substantial quantity of drugs and the overall sentence imposed in respect of the two trafficking charges.

27.Finally, Mr Leung asked me to take into consideration that D2 pleaded guilty at the earliest opportunity.  He is fully remorseful now and he is unlikely to reoffend. 

Consideration

28.In sentencing these two defendants, I have considered the nature of the dangerous drugs involved, the quantity of the drugs, the sentencing authorities, the facts of this case, the background of the defendants, the mitigation letters placed before me, and all the matters urged on the defendants’ behalf by the two learned counsels. 

D1

Charge 1

29.Charge 1 concerns 8.75 grammes of cocaine and 0.12 grammes of ketamine.  Applying the sentencing guidelines as laid down by the Court of Appeal in Lau Tak Ming (supra.), the 8.75 grammes of cocaine for Charge 1 falls within the band of sentence to 2 to 5 years’ imprisonment.  Given that 8.75 grammes of cocaine was involved in Charge 1, I will take 4 years and 8 months as the initial starting point.

30.As for the ketamine, the quantity involved in Charge 1 is minute, only 0.12 grammes. But the presence of it is still an aggravating factor as there are two different drugs trafficked at the same time and because of this I will only make a slight upward adjustment for 1 month and the starting point in this charge is therefore 4 years and 9 months. 

31.Given the role of D1 in Charge 1 as revealed by the facts was that of a courier simpliciter, I will not enhance the starting point on account of her role.  This is after all still the second trafficking conviction for D1 after looking at her record so after consideration, I would not enhance her sentence on Charge 1 this time.  

32.D1 is entitled to full one-third reduction for her early plea and clear record.  That would bring the sentence from 4 years and 9 months down to 3 years and 2 months.  Apart from the guilty plea and clear record of D1, there is no other mitigating factor for Charge 1. 

Charge 3

33.Charge 3 concern the possession of six items of dangerous drugs mostly cocaine and ‘Ice’ but all in small quantities.  I consider the case of Mok Cho Tik [2001] 1 HKC 261 and adopt the starting point of 12 months plus 6 months for the latent risk factor. 

34.In D1’s case however, the starting point has to be further increased for 3 months on account of the fact that this is already her fifth conviction for possession of dangerous drugs.  The ultimate starting point for Charge 3 in D1’s case is therefore 21 months.  After giving her the full one-third discount, the sentence was reduced to 14 months’ imprisonment.  Apart from the guilty plea, there is no other mitigating factor for D1 in Charge 3. 

Totality for D1

35.I agree with Mr Cheung that the subject matter of drugs involved were indeed a very small amount in Charge 3 and the offence was committed on the same day and the same occasion as Charge 1.  Even if the quantity involved in Charge 3 were for the purpose of trafficking, the presence of those drugs will not increase the overall sentence on the trafficking charges. 

36.In the end, I order that in D1’s case, the sentence of Charge 3 to run concurrently with the sentence on Charge 1, making the total sentence on Charge 1 and Charge 3 one of 3 years and 2 months’ imprisonment. 

37.The final step is to stand back and look at the overall sentence.  In my judgement, it is a fair, just and balanced sentence in all the circumstances of the offence and the offender, and there is no other reason existing to further adjust the sentence I seek to impose. 

D2

Charge 1 & 2

38.Unlike D1, D2 was involved not in one but in two trafficking charges, Charge 1 and 2. In sentencing these two charges, in respect of trafficking offences that arose from the same incident, the aggregated total amount of drugs would be taken for fixing the starting point. 

39.In the case of HKSAR v Chong Cho Kit, CACC 363/2005  (unreported, 12 July 2006), the Court of Appeal held: 

“The rationale behind is obvious because it would be unfair, for example, to treat two lots of drugs, one lot found on the accused when he was stopped coming out from the room and the other lot found in his home when he was brought back to his home for a search immediately thereafter, as separate and distinct lots when considering sentence.”

40.In sentencing, I have carefully considered the submissions and calculation made by Mr Leung and his observation after cross-checking on the result for the three tests.  Mr Anthony Leung, Senior Public Prosecutor, has correctly pointed out that the conversion test result should be 6 years and 4 months and not 6 years and 1.5 months as calculated by Mr Leung.  In any event, the difference is small and in the end, I consider an overall starting point of 6 years and 3 months would be appropriate for these two trafficking charges. 

41.In respect of D2’s claim that 6 grammes of the cocaine would be kept by him for self-consumption in every trafficking occasion, while there may be some truth in it, I find it hard to believe that as high as one-third of the quantity was involved.

42.I made it clear to Mr Leung in the hearing that in order to substantiate this claim, D2 might elect to go to the witness stand and give evidence and subject himself to the cross-examination by the prosecutor, but I was told D2 declined the offer. 

43.In the end, I judge that the figure of the quantity for self-consumption has been grossly overrated.  That said, I am still prepared to exercise my discretion and reduce the starting point by 3 months to 6 years’ imprisonment on account of this claim of self-consumption. 

44.On the facts of Charge 3 and given the role of D2, I judge that the initial starting point of 6 years should still be increased by 6 months to 6½ years.  It is because I do not agree with the submission by Mr Leung that D2 was only a courier or storekeeper in the operation.  According to the Summary of Facts to which D2 had admitted, he told the police in the VRI that he was instructed to pick up one pack of the cocaine to repack it into eight to nine packs in the hotel room and to sell it to the others.  By this admission, he is already an actual trafficker and therefore an increased sentence is warranted. 

45.Furthermore, I must further increase the starting point for D2 for another 12 months on account of the fact that this is already the fifth time he was convicted of the same trafficking offence.  Obviously, all the past sentences still failed to deter him and an enhancement in sentence is called for in D2’s case. 

46.That is 90 months in total, which in my judgment should adequately reflect the gravity of the offence as revealed by the types and quantity of drugs and also the culpability of D2 as shown by his role that he played in the trafficking of the drugs.  D2 is entitled to full one-third reduction for his early plea and that would bring the sentence down to 60 months or 5 years’ imprisonment.

47.For Charge 3, in D2’s case, I repeat my earlier consideration in relation to D1 in this possession charge.  I consider the case of Mok Cho Tik (supra.), and adopt a starting point of 12 months plus 6 months for the latent risk factor.  In D2’s case, the starting point has to be further increased for 3 months on account of the fact that this is already his third conviction for possession of dangerous drugs.  

48.The ultimate starting point in Charge 3 is therefore 21 months for him.  After giving him the full one-third discount on account of his plea, the sentence of Charge 3 in D2’s case was reduced to 14 months’ imprisonment.  Apart from the guilty plea, there is no other mitigating factor for D2 in Charge 3. 

Totality

49.For the reasons I gave for Charge 3 in relation to D1, I also agree with Mr Leung’s submission in relation to totality that the subject matter of the drugs involved were indeed very small amount in Charge 3 and the offence was committed on the same occasion as in Charges 1 and 2.  The sentence for two offences of trafficking and the sentence for possession charge can run concurrently in order to reflect the overall criminality of the three charges.

50.In the end, I order that the sentence for Charge 3 to run wholly concurrently with the sentence on Charge 1 and 2, making the total sentence on Charge 1, 2 and 3 one of 5 years’ imprisonment in the case of D2.  

51.The final step is to stand back and look at the overall sentence.  In my judgment, it is a fair, just and balanced sentence in all the circumstances of the offences and the offender and there is no other reason existing to further adjust the sentence I seek to impose.  I will recap the sentences for each of you. 

Sentence for D1

Charge 1

52.For the reasons given, D1 is sentenced to 3 years and 2 months’ imprisonment, that is 38 months. 

Charge 3

53.For the reasons given, on Charge 3, D1 is sentenced to 14 months’ imprisonment. 

Totality

54.I order that the sentence for Charge 3 shall run concurrently with the 38 months’ imprisonment for Charge 1.  Therefore, the total sentence for D1 in these two charges is 38 months’ imprisonment. 

Sentence for D2

Charge 1 and Charge 2

55.For the reasons given on Charge 1 and Charge 2, D2 is sentenced for 5 years’ imprisonment on each charge, both sentences to run concurrently. 

Charge 3

56.For the reasons given on Charge 3, D2 is sentenced to 14 months’ imprisonment. 

Totality

57.In D2’s case, I order that the imprisonment terms I imposed for Charge 3 shall run concurrently with the sentences for both Charge 1 and Charge 2.  The total sentences for Charge 1, 2 and Charge 3 is therefore 5 years’ imprisonment. 

Mr Anthony Leung, SPP of the Department of Justice, for HKSAR

Mr Cheung Kam-wing, Adonis, instructed by Cheung, Yeung & Lee, Solicitors, assigned by DLA for the 1^st accused

Mr Leung Po-sang, instructed by Sammy Ip & Co, assigned by DLA for the 2^nd accused