HKSAR v. LEUNG LAP YIN

HCCC 110/2018

[2018] HKCFI 2384

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 110 OF 2018

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

On 6 March 2017, Leung Lap-yin was observed by police officers coming out of Block 16 at 233 Deep Bay Road in Lau Fau Shan, in the New Territories.

He was intercepted by police officers and found in possession of a plastic bag containing four plastic bags containing 79.5 grammes of a solid containing 76.9 grammes of cocaine. He was arrested and cautioned and the response at the time was, the cocaine was in his possession for self-consumption.

The police took Mr Leung to Block 16 and gained access to a flat on the ground floor of that block, using a key which had been found in his possession. At these premises, the officers executed a search warrant. The officers found, amongst other things:

(1) A plastic bag containing 906 grammes of a solid containing 813 grammes of cocaine hydrochloride;

(2) One silver tray containing 3.02 grammes of a solid containing 2.96 grammes of cocaine;

(3) Three electronic balances containing traces of a powder containing cocaine;

(4) A large number of empty resealable bags.

On finding the foregoing items, the police arrested and cautioned Mr Leung, who once again asserted at the time, that the cocaine was for his own consumption.

Mr Leung was later interview by the police and told them, amongst other things:

(1) That he had lived in the flat which had been searched, and he had lived there since April 2016;

(2) A person known as ‘Ah Ben’ had recruited him to deliver dangerous drugs for financial reward. He told the police that he would receive $10,000 each time, for helping Ah Ben;

(3) Ah Ben would give him instructions and on the most recent occasion, he collected a rucksack of cocaine in a public toilet in Yuen Long which was brought to the flat;

(4) He then received instructions from Ah Ben to pack the cocaine seized by the police outside the premises, and that rucksack was to be taken to Tuen Mun;

(5) It was on the journey to Tuen Mun that he was intercepted by the police;

(6) And that the electronic scales found in the flat were for weighing the cocaine.

It was agreed that the retail value of the cocaine found in the current case, as at March 2017, was of the order of $964,000.

Mr Leung is a 24-year-old man. He was born in Hong Kong, a holder of a Hong Kong identity card, educated to Form 5 level and has worked as a property agent and transport work following his graduation from secondary school. He has been unemployed since 2016. He is a single man and he has a clear record.

Cocaine is regarded as a drug in essentially the same level of danger to individuals and to the community as heroin and methamphetamine, or more commonly known as ‘Ice’. Cocaine is addictive and it is recognised that the effects of its use over time can have serious consequences for the individual. Those consequences do not affect just the individual. They are a capable of imposing a drain on the community’s resources in areas such as hospital treatment and, where necessary, rehabilitation.

The maximum penalty provided by section 4 of the Dangerous Drugs Ordinance is a fine of $5 million and to imprisonment for life. Obviously that penalty is for the worst kind of case.

The approach of our courts is to provide sentencing guidelines which are related to the narcotic content of the drug in question. The object of this is to provide a measure of consistency as between those who are convicted of trafficking in dangerous drugs. The guidelines are not role-specific. By comparison, the activities contemplated by the definition of trafficking in the Dangerous Drugs Ordinance, encompasses a wide range of activities.

The evidence agreed between the parties is that the role of Mr Leung was to pick up drugs, store them, weigh them, pack them, deliver them. All of this was done on the instructions of ‘Ah Ben’. I am satisfied that the accused had a significant, but not an executive role, in the distribution of the cocaine.

I should add, he is not a street dealer, that is clear, and from the evidence of the video-recorded interview, it is pretty clear that the explanation for a young man of reasonable prospects of his age, had fallen into bad company and succumbed to the temptation of quick and easy money, and a substantial amount of it.

The source of guidelines for the trafficking of cocaine starts with the decision of the Court of Appeal in R v Lau Tak Ming & Others [1990] 2 HKLR 370. In Attorney General v Rojas [1994] 1 HKC 342, the Court of Appeal declared that the guidelines in R V Lau Tak Ming & Others were appropriate for cocaine. The correctness of the guidelines was confirmed by the Court of Appeal in HKSAR V Abdallah [2009] 2 HKLRD 431. Indeed, in HKSAR V Abdallah, the Court of Appeal set guidelines for, amongst others, cocaine where the amount in question was, as here, greater than 600 grammes. It is to be recalled that in R V Lau Tak Ming & Others, the guidelines set out in that case contemplated quantities of up to 600 grammes, beyond which the sentence was at the discretion of the sentencing court.

In any event, the sentencing range for the quantity seized, the subject of Count 1 in the charge sheet, is between 50 grammes and 200 grammes and would attract a sentence of imprisonment of between 8 and 12 years.

In relation to the quantity found in the flat, the appropriate sentencing band, as a result of HKSAR V Abdallah, for quantities between 600 grammes and 1,200 grammes is a sentence of between 20 and 23 years.

As the accused has pleaded guilty before a magistrate and was committed for sentence, he is deserving of a reduction in the sentence which would otherwise be appropriate, had he pleaded not guilty and had been convicted after trial. The level of discount which is appropriate for this man is one-third.

The accused faces two counts on the charge sheet. On one view, the activity he was undertaking in relation to the conduct germane to Count 1 on the charge sheet, is separate from that on Count 2. On that premise, he should be sentenced to separate sentences for both counts, subject to totality.

However, the contrary argument is that, on the basis that his role in the drugs activity was multifaceted and included collecting drugs, storing them, weighing and packing them and then delivering the drugs, there is a tenable view that his conduct, viewed as a whole, is all of one activity. On that premise, it would be appropriate to add the narcotic content of the drugs in Count 1 to the narcotic content of the drugs in Count 2, and sentence on that basis.

Whichever mode of analysis is appropriate, this man of previously clear record is facing a very long period of time in prison.

On the first mode of analysis, the accused is looking at a starting point of 9 years for the first charge and a starting point of 20 years and 8 months on the second charge. If those sentences were consecutive, the accused would be looking at a sentence of just under 30 years. Plainly, the totality would require a substantial part of one sentence to be concurrent with the other.

On the premise of the second approach to sentencing, that is, by treating the conduct in both charges, part of the same activity, and accordingly adding the two quantities of cocaine together, the accused would need to be sentenced on just over 892 grammes of cocaine.

It seems to me that the appropriate way to look at this case is to regard the delivery as part of the overall conduct of the accused, and it would be appropriate to add the quantities of cocaine together and arrive at a sentence from that stand point.

On the basis of the guidelines for trafficking in 892 grammes of cocaine, an overall sentence of 21 years as a starting point is appropriate. As I said, the discount should be one-third.

In order to combine justice with mercy, the order of this court is that you be sentenced to 14 years’ imprisonment.