HKSAR v. LEUNG CHUN WAI

 DCCC297/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 297 OF 2010

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Reasons for Sentence

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1.  There is not much assistance I can derive from the mitigation letters. Those letters only indicate the character of the author of the letters rather than the good character of you otherwise, if we ignore the criminal record. Generally speaking, the care your family members have shown on you does not count very much towards sentencing. If you care to look at and to read the newspaper, there is a recent case when a mother informed on the son and on his drug-trafficking offence. It was clearly stated by the deputy judge that no reduction of sentence can be made to reflect the nobility of the mother in informing on the son.

2.  I am not saying whether I agree with it or that particular case. Suffice it for me to say the fact that your parents, your sister care about you does not provide any mitigating circumstances. Or for that matter, the lack of care they have shown or they have admitted to have shown while you were young, is also not relevant in this particular case. There are two main reasons. First of all, this is a very serious offence. Such personal background, history does not carry much weight, if any at all, in mitigation. That was the principle laid down by various cases in the Court of Appeal.

3.  The second main reason, which I cannot find any similar expression in Court of Appeal cases, is that those mitigating factors must have been used by you on previous occasions when you needed to mitigate. In your case, five occasions. To draw an analogy, this personal circumstance is something like cash. Once you use it, it will become less. If you continue to use the same kind of mitigation, at some point of time, it would cease to have any effect at all.

4.  As pointed out by the prosecution, there are guidelines for this drug-trafficking offence. For the quantity of the drugs in question, the range of sentence or starting point should be one from 3 to 7 years. Quantity is one of the main considerations, but to arrive at the correct starting point, I do not believe that we should apply or assume a linear relationship, linear or a uniform, proportional relationship between quantity and the length of imprisonment then.

5.  The other matters I have to consider in this particular case, you admitted that you earned a profit of about $500 plus one take of the drugs for your self-consumption. I do not have to accept such a contention in every case, but in your case, I believe that it is worthy of belief because it does not serve any useful purpose for reducing your quantity of drug from 6.61 grammes to 6 grammes because it is still within the range of 3 to 7 years, and it is a relatively small amount and proportion of drugs. To sell the drug in whole grammes rather than in fraction of a gramme is reasonable and logical. So I accepted that you in fact wanted, if you can, to sell 6 grammes and you retained part of it, part of the 6.61 for your own consumption.

6.  But as I have said, it does not affect the sentence very much, but it increased your credibility and I believe that you in fact wanted to traffic the drug to your former inmate, which I presume, and who, presumably, had equally good access to drug if he wanted to have. And the part you played in this case is not particularly serious. It is a run-of-the-mill case, looking at the profit you made, and looking at a particular person you wanted to sell the drug to.

7.  By looking at the quantity of the drugs and the mode of operation, I think a starting point of 48 months, 4 years, is appropriate. You are entitled to one-third of remission because of your guilty plea.

8.  Your counsel has also correctly pointed out that there are other mitigating factors, that you are truly remorseful. You co-operated with the police. Remorsefulness and co‑operation with the police are the usual mitigation factors. I have to go back to the one-third remission, the principle behind it. The one-third remission would be given whether or not you have co-operated with the police, whether or not you are remorseful. As long as you pleaded guilty, you would be entitled to one-third. The rationale behind the case is not because evidence is strong or evidence is weak. You pleaded guilty. You saved the court’s time. It is simply an automatic remission which would leave the court no discretion at all. Once you have pleaded guilty, you are entitled to one‑third remission.

9.  In those Court of Appeal cases, the court laid down this principle, does not say in clear term and I do not think they mean that if there is genuine evidence of remorse, no further remission can be made. Those cases do not mean that those principles of sentence would no longer be applicable, those sentencing principles which would entitle the court to show leniency because of remorsefulness of the defendant. I think the court is entitled to, I think I am entitled to show some leniency because of your true remorsefulness. Of course, a court should not be too quick to jump to conclusion that the defendant is remorseful. He may say he is remorseful, but in fact he is not remorseful. Remorseful for being caught is no remorsefulness I can take into account. Remorsefulness about committing the crime at all would be proper consideration for the court.

10.  In your case, I found that you are truly remorseful. I accept what your counsel said. You fully co-operated with the police. You admitted you dropped something. You made no attempt to deny it. You did not change your attitude and you pleaded guilty. So I found that you are genuinely remorseful. Maybe it suddenly dawned on you that you missed the growing-up of your daughter, which has some ring of truth. And the other mitigating factor is your co-operation with the police. You saved police time in investigating your own crime.

11.  As I have said time and again, if two defendants in the same case pleaded guilty, they are entitled to one-third remission. If one person who had resisted all the way the police investigation, making all sorts of denial, wasting a lot of police investigation time, but at the end all these efforts fail and he has to plead guilty, yet he would get one-third remission because whether the evidence is strong or not is irrelevant. The other defendant who has co-operated with the police, saved a lot of police investigation time and pleaded guilty, if he gets no more than the other defendant, one-third remission, there would be a sense of injustice, a sense of grievance. And reasonable people would not be able to understand why there is such a grievance.

12.  It is my view that the sentence should be further reduced to reflect these two mitigating factors: your genuine remorsefulness and your full co-operation with the police, especially it is very easy for you to imagine a defence. But the reduction of sentence because these two factors cannot be too much because I have to consider you have already been given one-third remission for your guilty plea. But in your particular case, the two mitigating factors are quite strong, so I would give you a further reduction of 6 months.

13.  So it is a matter of arithmetic. So a starting point of 48 months, 4 years, minus one-third minus is 26 months. Luckily, it is divisible by 3, yes. Yes, so I will pass a sentence of 26 months.