HKSAR v. LEUNG TSZ KAM

HCCC 451/2017

[2019] HKCFI 1379

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 451 OF 2017

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Transcript of the Audio Recording
of the Sentence in the above Case

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Introduction

COURT:

The defendant pleaded guilty at committal to one charge of trafficking in a dangerous drug, namely 109 grammes of a solid containing 98.3 grammes of cocaine. He has confirmed his plea and agreement to the Summary of Facts before me.

His sentence has twice adjourned pending the completion of the trial of his co-accused Chow, who was arrested together with him at the same time. Last Monday, Chow was acquitted by the second jury after retrial, the first jury having been unable to reach a verdict at Chow’s original trial.

Facts

Briefly stated, on 22 May 2017, at about 2345 hours, the defendant was the front seat passenger of a private car driven by his co-accused, Chow Wai-yin. After Chow’s private car arrived and parked at Cheung Ching Bus Terminus, Tsing Yi, two police private cars without markings came and parked respectively in its front and at its rear. There and then, Chow’s private car reversed attempting an escape but it collided with the police private car parked behind.

Police officers revealed their identity to the defendant and Chow and eventually conducted a search of Chow’s private car. A recycle bag, which contained five transparent plastic bags of cocaine, which were the subject matter of the charge, was found underneath the defendant’s seat.

The estimated retail value of the cocaine was HK105,185.

Antecedent

The defendant now is aged 29, has been employed as a construction site worker and a cleaning worker. He has primary education. He is married and his wife is a mainland citizen. He was addicted to ketamine for about eight years.

The defendant has three court appearances between November 2009 and November 2011 with a total of three previous records for possession of dangerous drugs.

Starting point

The sentencing tariff for trafficking in cocaine follows that of trafficking in heroin, see Attorney General v Pedro Nel Rojas [1994] 1 HKC 342. For the present purpose, the applicable tariff is the one laid down in R v Lau Tak Ming [1990] 2 HKLR 370, which says that for trafficking between 50 grammes to 200 grammes of heroin narcotic, the sentence should be an imprisonment term between 8 and 12 years.

It is now well established that, the sentencing starting point for the offence of trafficking, in the absence of any good reasons to the contrary, is dictated by the quantity of the narcotic concerned and calculated mathematically and that the mere fact that the accused, like the present defendant, only acted as a courier of the dangerous drug is not a good reason for departing from that mathematical approach, see HKSAR v Kilima Abubakar Abbas [2018] HKCA 602.

In the present case, the quantity of the cocaine narcotic concerned is 98.30 grammes. The defendant had offered to give evidence against Chow but the offer was not accepted by the prosecution. Mr Donald, in his written mitigation, said that the defendant had been targeted and ill-treated by other inmates as a result of his giving two non-prejudicial statements to the prosecution, that his life is now in danger and that he is being treated inhumanly. However, having been told that the court is not prepared to accept assertions of this nature from the Bar table without evidence, Mr Donald withdrew those assertions from the mitigation.

In the circumstances, I can see no good reasons to depart from the mathematical starting point. Therefore, applying a mathematical approach, the starting point of the sentence is 9 years and 3 months’ imprisonment.

For the defendant’s timely plea, he is entitled to the customary one-third discount which reduces the sentence to 6 years and 2 months. Apart from that, in my judgment, there is nothing in the defendant’s personal or family background which can afford him any further discount in sentence. The same applies to the mitigation letters written by the defendant and his family members to which I have given full consideration.

Therefore, the defendant is sentenced to 6 years and 2 months’ imprisonment for the charge.