HKSAR v. Leung Ka Ching

DCCC 222/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 222 OF 2015

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REASONS FOR SENTENCE

1.The defendant pleaded guilty to a charge of "Trafficking in dangerous drugs". The dangerous drugs involved are cocaine and ICE.

Summary of Facts

2.About 11:50 pm on 21 October 2014, police officers entered Room B1, 15^th Floor, New Lucky House, No.300 Nathan Road, Kowloon ("the Flat") to execute a search warrant.

3.Apart from the bathroom, the Flat had no partition and only 1 bed.  The defendant was found sitting on the bed next to a red plastic box looking nervous.

4.Upon search, from the right front pocket of the defendant's shorts, a transparent resealable plastic bag which contained 31 plastic bags of suspected dangerous drugs (collectively "E2") was found.  From the red plastic box next to the bed, 7 transparent resealable plastic bags of suspected dangerous drugs (collectively "E3") were found.

5.E2 was later found to contain a total of 6.41 grammes of a solid containing 5.63 grammes of cocaine.  E3 was later found to contain a total of 8.98 grammes of a crystalline solid containing 8.68 grammes of methamphetamine hydrochloride.

6.Under caution, the defendant admitted that the ICE and "coke" were purchased by him.  Some was to be sold to others and the remainder, for his own consumption.

7.An electronic scale ("E6") and a transparent resealable plastic bag containing 10 transparent resealable plastic bags (collectively "E8') were found in the Flat.  The owner of the Flat confirmed that she rented the Flat to the defendant at a daily rent of $250.

8.In his video-recorded interview, the defendant admitted, inter alia, that he bought a big packet of cocaine; then divided it into smaller packets of about 0.2 gramme each.  He would sell them at $400 per packet.  He did not consume any of the cocaine; they were all for sale.  The defendant also bought the ICE.  It was partly for sale and partly for self-consumption.  He divided the ICE into smaller packets of about 0.8 to 1.0 gramme each.  He would sell them at $400 per packet.  The defendant used E6 to weigh the dangerous drugs and E8 for packaging.  He started selling dangerous drugs since his release from DATC in September 2014.

Mitigation & Sentence

9.The defendant is 44 and has 11 conviction records, which include 1 "trafficking" offence and 6 "simple possession" offences.  In late December 2014, the defendant was given a DATC Order for 2 "simple possession" offences (KCCC 4044/2014).  I was informed that the Order is still operative.

10.In mitigation, defence counsel Mr. CHENG submitted that the defendant has a long history of drug addiction.  Shortly after being released from a DATC in September 2014, the defendant needed money to feed his drug habit.  He therefore returned to the trafficking business.  Despite what the defendant had said in his video-recorded interview, Mr. CHENG informed me that his instructions are that the defendant intended to consume ⅔ of the all the drugs found; and only the remaining ⅓ was for sale.

11.A letter written by the defendant was handed up; its contents are duly noted.  Mr. CHENG has also informed me that the defendant separated from his 2^nd wife in 2010.  The woman found in the Flat is the defendant's fiancée.

12.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 even for fresh offenders.

13.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) and ICE (see A-G v CHING Kwok-hung [1991] 2 HKLR 125).  For up to 10 grammes of cocaine, the sentence ranges from 2 to 5 years' imprisonment.  For up to 10 grammes of ICE, the sentence ranges from 3 to 7 years' imprisonment.

14.In determining the proper starting point, I have reminded myself of the sentencing principles for trafficking in cocktail drugs stated in HKSAR v YIP Wai-yin & another CACC 80/2003, HKSAR v CHENG Yat-ming CACC 455/2006 and HKSAR v CHAN Yuk-leong CACC 318/2013.

15.In the present case, the defendant trafficked in a cocktail of drugs consisting of 5.63 grammes of cocaine and 8.68 grammes of ICE.  For 5.63 grammes of cocaine, the appropriate starting point is 3.5 years.  For 8.68 grammes of ICE, the appropriate starting point is 6.5 years.  I am of the view that the "combined approach" would arrive at a realistic and fair sentence. 

16.In terms of either potency or quantity, 8.68 grammes of ICE should form the basis of the starting point.  Hence, I adopt a starting point of 6.5 years' imprisonment and adjust it upward by 15 months for the cocaine, arriving at 93 months.

17.Regarding the claim for self-consumption, I have reminded myself of the relevant sentencing principles.[1] I accept the defendant's conviction records do show that he has a long history of drug addiction.  I, however, reject his claim that ⅔ of the all the drugs found were for his own consumption.  It clearly contradicts what he said in his video-recorded interview.  I am prepared to reduce the sentence to 81 months[2] to reflect the discount for self-consumption.

18.Finally, a one-third discount is given for the guilty plea, reducing the sentence further to 54 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 54 months' imprisonment.