HKSAR v. Leung Kan on

DCCC 749/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 749 OF 2012

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REASONS FOR SENTENCE

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The defendant pleaded guilty to a charge of "Trafficking in a dangerous drug". The dangerous drug involved is cocaine.

Summary of Facts

2.About 7:30 pm on 1 June 2012, PC 7072 (PW1) and his colleagues were on surveillance duty outside Flat H, 2^nd Floor, Block 1 Parkland Villas Phase 1, No.1 Tuen On Lane, Tuen Mun ("the Flat").  At the same time, SPC 45599 (PW3) and another police officer were on surveillance duty at the podium outside Flat H of the same building.

3.Suddenly, PW3 saw the lights of the bedroom on the left side of the Flat being switched on and a male (later identified as the defendant) throwing an object in white colour out of the window.  That object landed on a flowerbed, which was about 2 metres away from PW3.  PW3 unwrapped the object and found 2 resealable plastic bags and a tissue wrap containing a total of 109 packets of suspected dangerous drugs.  He informed his colleagues of his discovery.  The 109 packets were later found to contain a total of 25.31 grammes of a solid containing 19.74 grammes of cocaine.

4.Upon being notified by PW3, PW1 and other officers gained entry into the Flat.  PW1 saw the defendant, a male and a female in the living room, whereas another female CHENG Nga-man was inside the bedroom on the left side of the Flat.

5.PW1 arrested the defendant.  Under caution, he admitted that he had rushed into CHENG's bedroom to throw the cocaine out of the window.  CHENG was also questioned.  She claimed that she occupied the bedroom on the left side of the Flat and the defendant occupied the one on the right side.  Upon search, the Police found an electronic scale on a mattress in the defendant's bedroom.  Also, 5 keys were found in the defendant's left front trouser pocket.  

6.In his video interview, the defendant claimed that part of the cocaine was for self-consumption.[1] He admitted that he purchased the cocaine from a male named Ah Wah at $20,000 in the afternoon on 1 June 2012.  He intended to sell the cocaine at $400 per 0.3 gramme.  He began to reside in the bedroom on the right side of the Flat on 28 May 2012.  The electronic scale found in his bedroom was for weighing dangerous drugs.  He threw the cocaine from CHENG's bedroom because he believed there were police officers outside the Flat and that it would be easier to retrieve the drug if it was thrown out of CHENG's bedroom.  The keys seized from him are keys to the Flat and they belong to him.

Mitigation & Sentence

7.The defendant is now 19 and has 1 conviction record, which is "simple possession".  He was sentenced to a Rehabilitation Centre in September 2011 and spent 8 months there.  In other words, he was released in May this year.  Yet, he committed the present offence in June.

8.Defence counsel Mr. TAM informed me that the defendant is the only child in his family and he resides with his parents in a public housing unit in Tuen Mun.  He worked as a kitchen worker from March to May 2012 earning $5,000 per month; it was a job arranged from him by the Rehabilitation Centre.  At the time of the offence, the defendant was unemployed.

9.Mr. TAM submitted that the defendant was influenced by some undesirable peers.  He committed the present offence in order to earn some quick money.  He was already arrested by the Police before he could see any of the cocaine.

10.The defendant has had his chance when he was sentenced to a Rehabilitation Centre.  Regrettably, he did not treasure that opportunity to start afresh.  Based on section 109A(1A) of the Criminal Procedure Ordinance (Cap.221) and owing to the seriousness of this case, I took the view that it was unnecessary to obtain any pre-sentencing reports despite the defendant's young age.  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.

11.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 10 to 50 grammes of cocaine, the sentence ranges from 5 to 8 years' imprisonment.

12.The defendant trafficked in 19.74 grammes of cocaine in the present case.  The appropriate starting point is 5.5 years.  A one-third discount is given for the guilty plea, reducing the sentence to 44 months.  Apart from this, I see no other mitigating factors which warrant any further discount.  The sentence I pass is 44 months' imprisonment.