HKSAR v. Leung Kok Lee

DCCC 1201 & 1204/2008
(Consolidated)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NOS. 1201 & 1204 OF 2008 (Consolidated)

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Reasons for Sentence

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Charges and facts

1.D1 pleads guilty to 3 charges against him. The 1^st and the 2^nd Charges are of trafficking in a dangerous drug, cocaine. The 3^rd Charge is of resisting 2 police officers in execution of duty.

2.At 5:55 p.m. on 24 September 2008, Sgt 49474 saw D1 park a car bearing licence plate number DF 912 (the “Car”) at a parking meter on Anhui Street, Hung Hom, and enter the building known as Kar Shun Building, 238-244 Ma Tau Wai Road, Hung Hom, Kowloon. He informed his colleagues who were in ambush at the staircase outside Flat A, 19/F of the building (the “Flat”). Shortly afterwards, D1 appeared in the lift lobby outside the Flat and made a phone call. A moment later, D2 opened the door of the Flat for D1. The police rushed into the Flat and disclosed their police identity.

3.Upon learning of the police identity, D1 attempted to rush to the toilet of the Flat. PC 33348 immediately apprehended him. He resisted by hitting PC 33348 on the chest with his elbow for three times. DPC 33054 joined in subduing D1. Despite their repeated warnings to desist, D1 still put up a vigorous struggle, which caused both police officers to fall onto the ground. After a brief struggle, PC 33348 finally subdued D1 (the 3^rd Charge).

4.PC 33348 had a mild tenderness over right hip. DPC 33054 suffered a spasm of right paraspinal muscle, an abrasion over left hand and a bruise over right forearm.

5.Upon search on D1, the police found a plastic bag containing 11 transparent re-sealable plastic bags of substance (later analysed to be 3.74 grammes of a solid containing 3.21 grammes of cocaine) in D1’s right hand (the 1^st Charge). After arrest for trafficking in a dangerous drug and caution, D1 remained silent.

6.The police searched the Car and found a total of 8.25 grammes of a solid containing 5.81 grammes of cocaine (the 2^nd Charge) comprising:

(1) 1 chewing gum packet containing:

(a) 1 re-sealable plastic bag containing 9 bags of substance (later analysed to be 3.02 grammes of a solid containing 2.41 grammes of cocaine);

(b) 1 re-sealable plastic bag containing 9 bags of substance (later analysed to be 3.01 grammes of a solid containing 2.29 grammes of cocaine);

(c) 1 re-sealable plastic bag containing 3 bags of substance (later analysed to be 0.98 gramme of a solid containing 0.77 gramme of cocaine);

(2) 1 chewing gum packet containing 1 re-sealable plastic bag containing:

(a) 2 bags of substance (later analysed to be 1.24 grammes of a solid containing 0.34 gramme of cocaine);

(b) 2 empty re-sealable plastic bags.

7.Upon further arrest for trafficking in a dangerous drug, D1 said nothing. Cash $21,174 was found on him.

Mitigation put forward

8.D1 is now 41 years of age. He has a number of criminal convictions. Of relevance to our sentence is only a conviction for assaulting a police officer in 2005. He was fined $2,000.

9.He was a car salesman but he had lost his job before arrest due to the poor economic environment. D2 was his friend. He did not traffic to the general public. The drug in the Car was also for D2. He is divorced with 2 children, aged 16 and 17 respectively who are at school. They live with his ex-wife. He pays maintenance of $15,000 per month to them. He also pays $3,000 to $4,000 to support his mother.

The sentencing guidelines

10.In Attorney General v Rojas [1994] 1 HKC 342, Silke VP equated the psychotropic impact of cocaine with heroin. The sentencing guidelines in R v Lau Tak-ming [1990] 2 HKLR 370 were said to be directly applicable as follows:

（1）Below 10grammes of heroin, 2 to 5 years’ imprisonment;

（2）10 to 50 grammes, 5 to 8 years；

（3）50 to 200 grammes, 8 to 12 years；

（4）400 to 600 grammes, 15 to 20 years；

（5）over 600 grammes, 20 years upwards.

The sentence I pass

11.There is nothing to contradict the mitigation that the drug in the Car was also for D2. On that basis the sentences for the 1^st and the 2^nd Charges should be concurrent. Be that as it may, I have to deal with each individual charge step by step.

12.The 1^st Charge involved 3.21 grammes of cocaine. It falls within the range of 2 to 5 years’ imprisonment according to Lau Tak-ming (above). D1 was both the seller and courier. I take a starting point of 4 years and 6 months. I give a one-third discount for the plea of guilty. There are no other mitigating factors. The sentence is 3 years.

13.The 2^nd Charge involved 5.81 grammes of cocaine. It falls within the range of 2 to 5 years’ imprisonment according to Lau Tak-ming (above). D1 was both the seller and courier. I take a starting point of 4 years and 6 months. I give a one-third discount for the plea of guilty. There are no other mitigating factors. The sentence is 3 years.

14.The 3^rd Charge shall attract a starting point of 6 months. I give a one-third discount for the plea of guilty. There are no other mitigating factors. The sentence is 4 months.

15.By totality I order for all sentences to be concurrent.