HKSAR v. Leung Kwok Man and Another

DCCC381/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 381 OF 2011

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Reasons for Sentence

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1.D1, you have pleaded guilty to one offence of trafficking in a dangerous drug; D2, you have pleaded guilty to one offence of possession of a dangerous drug, respectively contrary to section 4(1)(a) and (3) and section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap.134.

2.D1, you denied one offence of possession of dangerous drugs.  You admitted the brief facts in respect of the offences for which you have pleaded guilty and I convicted you.  The possession of dangerous drugs in respect of you, D1, I order to be left on the file and not to be proceeded with without leave of this court or the Court of Appeal.

3.The facts you admitted were as follows.

4.On 7 February last, police officers at about 10.30 pm at Choi Yuen Estate, Sheung Shui, saw you, D2, acting furtively.  You got into a car and it drove off.  They followed and found the car stopped near a filling station at Au Tau, Castle Peak Road, Yuen Long, with the engine switched off at about 10.55 pm.  They approached the car and ordered you, D2, and the driver, who was D1, and you, D1, to alight.

5.A search of you D2 revealed two resealable plastic bags, which is E1, containing cocaine, cash of $26,550 and renminbi ¥700 from your right front trousers pocket. Under caution, you admitted it was for your own consumption but refused to answer how you got so much cash, which of course is your right. 

6.A search of you D1 revealed a plastic bag, which was E2, containing 11 smaller plastic bags containing suspected cocaine, E4, with a rubber band in your right hand.  Thirty two empty plastic bags were found in your right front trousers pocket and two pieces of paper with records on were found in your wallet.  That is Charge 1.

7.Under caution you admitted intending to earn money by selling the cocaine.  You had worked with D2 for one month buying and selling cocaine.  That of course is no part of the prosecution case.

8.D2, you were initially arrested for trafficking in dangerous drugs but denied the offence and said you had no idea about the drugs found on D1.  You admitted the money was yours but said it was not for trafficking. 

9.E1, E2 and E4 were sent for analysis.  E1, the two plastic bags, contained 0.5 grammes of a solid containing 0.41 grammes of cocaine; E2 was one plastic bag containing traces of cocaine; and E4, 11 plastic bags containing 5.93 grammes of a solid containing 4.34 grammes of cocaine.

10.D1, you admitted to one previous dissimilar conviction.  D2, you admitted also to one previous dissimilar conviction.

11.I adjourned the case for probation reports.  In your case, D1, for a Probation Officer’s Background Report, and in your case, D2, for a Probation Officer’s report.

12.The reason I asked for reports was primarily because of your age, D2, and this was your first conviction involving possession of dangerous drugs.

13.I am told that both of you accept the contents of those reports.

14.On behalf of you, D1, Mr Lee entered mitigation.  In mitigation he said you were remorseful, you had pleaded guilty and had been co-operative from the outset.  This latter contention is borne out by the facts.  I am told that the offence arose because of financial hardship based upon the failure of your business.  This had left you with debts of about $150,000.  You have one previous conviction but that is for a totally different matter and a long time ago.

15.On your behalf, Mr Lee realistically acknowledged that you would have to go to prison and recognised the tariff as being 2 to 5 years.  He asked me to be as lenient as possible and to keep to the lower end of the tariff.

16.You are 29 years of age, you live with your family, and you had been employed as a driver.  You have cared for your mother who suffers from heart problems and hypertension.  From your earnings of $8,500 per month you usually gave $5,000 to the family.

17.Mr Lee also referred to two letters, one written by yourself which basically said you were remorseful, and one letter by your mother, which confirms that you are a filial son.

18.Mr Yip then entered mitigation on behalf of you, D2.  He told me that you accept the recommendation in the probation report, or I should say the supplemental Probation Report.  He acknowledges you have one previous conviction in 2009 for a totally different matter, that until the present offence you had behaved well.  He told me that your girlfriend had left you in December 2009 and you had turned to drugs for consolation.  You are determined now, I understand, to keep away from drugs.

19.I turn now to the sentences.

20.D1, you are convicted of trafficking in dangerous drugs.  This is always a serious matter.  Cocaine is a particularly evil substance.  You were trafficking in 4.34 grammes.  In your favour I note that this is your first conviction involving dangerous drugs, that you entirely co-operative with the police at the scene of your arrest, and you have pleaded guilty.  I accept also that you committed the offence because of financial problems arising from your failed business. 

21.I have taken into account all the mitigation advanced on your behalf, the contents of the Probation Officer’s Background Report, the two letters and the facts of the case.

22.I take as a starting point 3 years’ imprisonment, reduced to 2 years for your plea of guilty.  You will go to prison for 2 years. 

23.I am sure you have been told that the time you have spent on remand will count towards that.

24.D2, you are convicted of possession of dangerous drugs for the first time.  You are only 19 years old.  The Probation Report is a positive report with a positive recommendation.  I am resolved therefore to give you one last chance.

25.I propose therefore to make a Probation Order in this case for a period of 12 months.  There will be two conditions.  The first is that you must abstain from all dangerous drugs.  The second is you must submit to random urine tests when required by your Probation officer.  Under the terms of probation, you must accept that the instructions of the Probation officer, to visit the Probation officer when required and to receive visits in your home, you must live an honest and industrious life, and you must commit no further offences.  If you breach the Probation Order, you will be brought back before this court and sentenced again for what you have done, and the alternative, I can tell you, would be either a DATC or prison.  Do you understand?

2ND DEFENDANT: Yes.

COURT: Are you willing to accept probation?

2ND DEFENDANT: Yes.

26.Then I confirm the order in those terms.