HKSAR v. LEUNG KING PIU

DCCC 1027/2017

[2018] HKDC 1616

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1027 OF 2017

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REASONS FOR SENTENCE

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1.  In these proceedings, the defendant Leung King Piu, is charged with one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, and one count of failing to surrender to custody without reasonable excuse, contrary to section 9L(1) and (3) of the Criminal Procedure Ordinance, Cap 221. He is convicted upon his plea and admission of facts.

2.  The amended summary of facts reveal that the defendant was stopped and searched by the police on the third day of July, 2017, in Yau Ma Tei area.  The police found a resealable bag containing 10.50 grammes of a crystalline solid containing 10.10 grammes of methamphetamine hydrochloride.  At the time he had about $500 cash with him and a mobile phone.

3.  Upon caution, he admitted possession of the drugs, alleging it to be for self-consumption.  The money he paid for the drugs was $1,500.

4.  Subsequent search of the defendant’s home in Kwun Tong found no instrument for consumption of the dangerous drugs in question.

5.  The estimated street value of the drugs seized was HK$4,662.

6.  After he was formally charged and the case having been brought up to the District Court for trial.  He was supposed to appear on the first day of February 2018, but he failed to appear.  He was therefore charged with the 2nd count.

7.  On the third day of April 2018, he was intercepted by a stop-and-search and rearrested.

8.  These are the facts of the case.

9.  The defendant, according to the background information provided by the prosecution, is aged 30.  Prior to the commission of the present offence, he had on eight occasions been convicted of a crime, all of which drug related. The last conviction was dated 2014 for an offence which took place on 17 December 2013; he was convicted of one count of trafficking in a dangerous drug, for which he was sentenced to 5 years and 2 months.

10.  For his background and his age, there is in fact no reason to exercise any leniency.

11.  Possession for unlawful trafficking of what is commonly known as “Ice” has been considered by the Court of Appeal and a clear sentencing guideline has been set out in the case of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691.

12.  Both the prosecution and the defence are in agreement that the quantity of the “Ice” involved in the present case falls into the 10 to 70 grammes bracket, for which the proper sentence order should range from 7 to 11 years’ imprisonment.

13.  In this case, I see no reason or justification for departure from the same.

14.  In mitigation, Mr Lai for the defence has suggested that part of the drugs were used for self-consumption; therefore, the sentence should be discounted.  My attention was drawn to the case of HKSAR v Wong Suet Hau & Anor [2002] 1 HKLRD 69.

15.  The prosecution does not accept that part of the drugs was used for self-consumption.

16.  In the Wong Suet Hau case, the Court of Appeal pointed out that if, after a plea of guilty to trafficking in dangerous drugs had been entered, the defendant suggested that a significant portion was intended for self-consumption and if it was apparent that, from the circumstances as a whole, such contention, if true, might make a difference to the sentencing, the court ought to address this issue.

17.  The Court of Appeal also advised that, in order to prevent of the abuse of this avenue of mitigation, the judge should look with the greatest care and all the circumstances in order to decide whether or not to accept such contention.  If necessary, the court should consider a Newton inquiry or just look at the facts as a whole to determine.

18.  The defence stated that there was no need to hold a Newton inquiry.  The defence also accepted it is for the defence to raise the evidential burden in order for this court to make findings to his favour.

19.  In the Wong case, the Court of Appeal set out a number of factors which the court could consider. 

20.  There is no evidence from the defence to contend that part of the drugs was used for self-consumption.

21.  In this case, the quantity was 10.10 grammes of methamphetamine hydrochloride in one single bag. In the subsequent house search the police did not find any instrument for consumption of “Ice”.  The defendant was in the street when the police found in his possession the dangerous drug.  The defendant at the time of arrest explained that it was for his own self-consumption.  I also note that, of the four drug-related convictions, one of which was trafficking.

22.  After the defendant was arrested, the defendant was subject to a urine test on 12 November 2017.  The defendant was tested positive for cocaine but not the drug involved in this case.

23.  On the whole, there is no positive evidence, if at all, to show any part of the drugs found on the defendant’s person, was used for self-consumption. This was but an allegation from the defence, unsupported by any evidence.

24.  In the circumstances I do not see any reason to adjust the starting point for sentence.  As has been stated before in the case of Tam Yi Chun, the Court of Appeal has set out clear guidelines and, in the circumstances, I will adopt 7 years as a starting point.

25.  In respect of Charge 2, the defence has suggested that he had absconded for only two months and Mr Lai of the defence fairly admitted that the defendant was rearrested but did not surrender himself.

26.  The maximum sentence for this offence is 12 months’ imprisonment. However, in view of the circumstances of the case and taking into account of the totality principle, I do not think that the present case warrants an addition of substantial prison term to the defendant.

27.  Therefore, for Charge 2, I will adopt a starting point of 2 months.

28.  I turn to consider the mitigating factor put forward.

29.  As has been pointed out that the defendant at the time of the offence was a mature man who had a string of previous convictions, all of which related to dangerous drugs.  I do not see any significant factor in his  background which might justify extra leniency to be exercised in his favour.

30.  The only valid mitigating factor is the fact he pleaded guilty and, in line with existing authorities, I would reduce his sentence for the first count by one-third.

31.  The appropriate total starting point for Charge 1 is 84 months.  It is reduced by one-third to take into consideration of his guilty plea and the proper sentence order is 56 months.

32.  In respect of Charge 2, I would reduce the 2-month down to 1 month. 

33.  The two offences being separate offences, they are to be ordered to run consecutively.

34.  The total term of imprisonment is therefore 57 months.