HKSAR v. Leung Kin Kui

DCCC 191/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 191 OF 2014

----------------------------

----------------------------

----------------------------------------

REASONS FOR SENTENCE

----------------------------------------

1.The defendant,Leung Kin Kui (male) (aged 44 years), appeared before me this morning and pleaded guilty to a single charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.The particulars of offence alleges that the defendant on 9 December 2013, at the premises known as Room 9, 2nd Floor, No 67 Nam Cheong Street, Sham Shui Po, Kowloon, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 28.06 grammes of a mixture containing 21.76 grammes of heroin hydrochloride.

Facts

3.According to the Summary of Facts which has been agreed by the defendant following his plea, this is a simple stop-and-search case where the police officers on the day in question armed with a search warrant had raided the apartment, and found the defendant together with his male friend in side. 

4.Upon search, one of the police officers found a transparent plastic bag containing the suspected heroin from the left front pocket of the defendant’s trousers.  After arrest and under caution, the defendant admitted that he obtained the bag of the white powder from a person named Ah Sai and that he wanted to sell it for money.  The police also found together a mobile phone with a SIM card and HK$632 cash on the person of the defendant.

5.In a subsequent video-recorded interview, the defendant admitted to the police that he himself was a drug abuser, smoking white powder or No 4 heroin.  On the day before the arrest, he bought the suspected dangerous drug from a person called Ah Sai whom he met a few days ago for a sum of HK$9,000. He further revealed that he would consume some of the white powder and sell some to his friends for $150 per packet.  Each packet would weigh about 0.2 gramme.  On the day of arrest, he put the white powder into his trousers pocket and intended to go out to sell it to some of his friends. 

6.He had been residing in this room together with his friend, Yeung, some one month ago, and apart from living on the comprehensive social security assistance (CSSA) at $2,400 per month, he also had been doing some odd-job works and the cash found on him was his income.  

7.The estimated street value of the dangerous drugs heroin was around $21,859.

Criminal record and the background of the defendant

8.The defendant in the past had altogether 15 previous criminal convictions with 7 drug-related offences, one of which is trafficking in dangerous drugs in 1998 and the rest are all possession of dangerous drugs.  He has been sentenced to the DATC twice, both in 2000 and 2002.  His last conviction was a copyright offence for which he was sentenced by the magistrate for 4 months’ imprisonment.  He was last discharged from the prison in May 2010.

9.His counsel, Miss Lai, informed the court that he got married in China in year 2010, and his wife is now aged 32, a housewife living in China. He had completed a Junior Secondary Form 2 level in China before coming to Hong Kong in 1995.  After coming to Hong Kong, he had fallen to the habit of smoking drugs.  His both parents have passed away already in 1996 and he still has an elder brother now living in China.  He had been working on a casual basis as a hawker and also a construction worker before his arrest, and previously he had also been working as a restaurant worker.

10.Much of what he told his counsel about his drug habit was similar to what he had told the police.  Apart from that, Miss Lai also informed me that the defendant had tried very hard to kick the habit of the drugs but with no success albeit that he had been sentenced to the DATC twice.  Miss Lai also told me that after his arrest, he was remanded in the Lai Chi Kok Reception Centre.  The defendant has been hospitalised for about 10 days for his drug-withdrawal symptoms and also other symptoms.

11.For the present amount of the drugs, the defendant freely admitted to the court that he was a drug trafficker but then at the same time he also would use part of the drugs for his self‑consumption.  In other words, the amount of the drugs was indiscernible.  He would sell and he was prepared to sell the drugs to his friends in order to feed and finance his own drug habit.  He would consume up to 1.5 grammes each day.  According to the calculation by Miss Lai, for the present quantity of drugs, according to the tariff guidelines laid down in R v Lau Tak Ming and Others [1990] 2 HKLR 370, it is about 5 years and 11 months.  Miss Lai urged the court to reduce the starting point owing to the fact that part of the drugs is for his self-consumption, citing the case of HKSAR v Chow Chun Sang, CACC 135/2011 (unreported).

Sentencing considerations

12.Trafficking in dangerous drug is of course a very serious offence.  The defendant should know better because in the past he had also been sentenced by the court for drug-trafficking offence.  Of course, at that time he was only dealt with in the Magistrate Court but this time because of the quantity involved, he is facing a longer period of imprisonment now that he was being charged in the District Court.

13.The present quantity of drugs is 21.76 grammes of heroin hydrochloride which, according to the tariff guideline laid down in the Lau Tak Ming (supra) should attract a basic starting point of about 71 months. 

14.According to Chow Chun Sang (supra) self‑consumption of all or part of the drugs would usually attract a discount to sentence between 10% and 25% of the basic starting point.  According to the Court of Appeal, this is a discretion enjoyed by the sentencing court and the Appeal Court would be loath to interfere.  Exact discount would also depend on the nature and the quantity of the drugs, the proportion of the drug intended for self use, whether the offence is organised, premeditated and for financial gain, and also the defendant’s background and record.  

15.Looking at the defendant’s criminal record, his background and taking into account what has been urged on behalf of the defendant by Miss Lai, I am satisfied that the defendant is himself a drug abuser and the reason why he resorted to committing this present crime is because of his drug habit.  Because of this reason, I am prepared to grant a further reduction from the basic starting point of about 8 months which is slightly more than 10% of his basic starting point.

16.The starting point would be reduced by 8 months to 63 months’ imprisonment.  On top of that, the defendant would be given the usual one-third discount on account of his guilty plea.  In the end, the sentence is 42 months’ imprisonment which is 3 years and 6 months.