HKSAR v. SUN TAK LEUNG

DCCC 1194/2023

[2024] HKDC2151

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1194 OF 2023

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.  The defendant was charged with trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134. He was convicted on the charge upon his own plea of guilty and admission of the facts.

2.  The defendant claims in mitigation that half of the heroin seized was for his own consumption, yet the circumstances and the means of the defendant do not support his allegation.  I have made it clear to the defence that I would not accept his bare allegation.  The defendant chooses not to call any evidence.

THE FACTS

3.  At about 8pm on 18 June 2023, D was acting furtively while sitting on a bench in the Portland Street Sitting Out Area.  PC25277 intercepted D for search, and found him holding a metal box in his left hand which contained the following:

(1)  6 packets (consisting of plastic wrappings)  containing a total of 2.79 grammes of a mixture containing 2.08 grammes of heroin hydrochloride (a salt of heroin); and

(2)  7 packets (consisting of plastic wrappings)  containing a total of 3.64 grammes of a mixture containing 2.67 grammes of heroin hydrochloride (a salt of heroin).

4.  D was arrested for “possession of a dangerous drug”.  At time of arrest, he was in possession of cash $8,913.  Under caution, the defendant said he used $2,000 to purchase the dangerous drugs two days ago from an unknown person on the street for self-consumption.

5.  The estimated street value of the drug was about $4,750.  At all material times, D was in possession of the dangerous drugs seized for unlawful trafficking. 

MITIGATION

6.  The defendant aged 59, divorced with a daughter, living alone prior arrest.  He is a drug addict, unemployed and relies on CSSA around $5,400 per month.  He has 10 previous conviction records, consisting 12 counts, all related to dangerous drugs, including one trafficking in dangerous drugs in 1985, his last conviction was in 2015 of which he was sentenced to 6 months’ imprisonment suspended for two years.   He relapsed to dangerous drugs because he lost his job and his divorce suit 3 years ago.

SENTENCE

7.  Heroin is a hard drug; I refer to the tariff in the case Lau Tak Ming [1990] 2 HKLR 370 for trafficking heroin: up to 10 grammes 2 to 5 years’ imprisonment. 

8.  Though the defendant is a drug addict and claimed under caution he purchased the heroin 2 days ago for his own consumption, he was still holding the items in his hand in the Sitting-out Area without any apparatus for inhaling dangerous drug.  He was unemployed relying on CSSA and yet he was in possession of nearly nine thousand cash at the time of his arrest.  He purchased the heroin seized for $2,000 while the potential street value of the items was around $4,750.  The circumstances and his means do not support his claim of self- consumption.  I have made clear to the defence that I would not accept the defendant’s bare allegation, yet he chooses not to call any evidence.

9.  According to defendant’s admission under caution, the heroin was purchased by him, that being the case, he was not a courier but a drug peddler.  Also, there is no evidence of social trafficking.  Taking into account of the facts, the packing and the quantity of the drugs (a total of 13 packets containing 6.43 grammes of a mixture containing 4.75 grammes of heroin hydrochloride), the rest of his mitigation and his background, I consider the appropriate starting point to be 3.5 years’ imprisonment.

10.  With his prior dangerous drugs related records, even if half of the heroin seized was for his self-consumption, possession of 2.4 grammes of heroin would call for a starting point approaching 12 months’ imprisonment, while trafficking of 2.4 grammes of heroin would call for a starting point not less than 33 months’ imprisonment.  The overall culpability would be around 38 months’ imprisonment, i.e. a 10% discount of the starting point.  However, as mentioned above, the facts admitted by the defendant does not support his claim that half or any substantial part of the dangerous drugs seized was for his self-consumption.

11.  The defendant pleaded guilty, I allow him one-third discount for his plea.  I do not consider there to be any mitigating factors that called for further deduction.

ORDER

Sentenced to 28 months’ imprisonment.