HKSAR v. LEUNG NAI CHEUNG, TOMMY

DCCC 249/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 249 OF 2014

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Reasons for Sentence

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1.  The defendant has pleaded guilty to trafficking in 4.13 grammes of methamphetamine hydrochloride, a drug more commonly known as “Ice”. The defendant has also pleaded guilty to a 2nd charge of possession of apparatus fit and intended for the inhalation of “Ice”.

2.  The facts admitted by the defendant state that an undercover police officer, PW1, posed as a customer to purchase drugs from the defendant.  At 5.47 on 10 February, she called the defendant’s telephone number.  The defendant answered the phone and acknowledged that he was Nai Cheung and informed the officer that drugs weighing 3.5 grammes would cost $1,100, and it was arranged that they would meet near a karaoke establishment in Causeway Bay. 

3.  The officer went to Causeway Bay and just before 7 o’clock received a telephone call from the defendant stating who he was and saying that he had arrived at the location. 

4.  Shortly after 7 o’clock, the officer was standing outside the karaoke establishment, and the defendant approached her and identified himself to her.  He then passed her a plastic bag containing white crystalline solids, the first bag, and she paid him $1,100.  The defendant then walked away and was intercepted by a second officer.  This second officer searched the defendant and found a second bag in the jacket worn by the defendant which again was seen to contain white crystalline solids.

5.  Later that day, the officers went to the defendant’s residence in Kwai Chung, and there they discovered apparatus fit and intended for the inhalation of “Ice”.  This was an inhaling device consisting of a plastic bottle with two inlets and a bent glass tube with a bulb shape at the end.  This device was found to contain 17 millilitres of a liquid containing traces of “Ice”.

6.  The drugs seized from the defendant were later analysed and found to contain 4.13 grammes of methamphetamine hydrochloride.

7.  In a subsequent video-recorded interview, the defendant admitted receiving $1,100 from the undercover police officer and admitted using the inhaling device.  The defendant insisted, however, that the second bag that was found in his jacket pocket was for his own consumption.  At the time of his arrest, the defendant was in possession of the marked money and about $38.  The estimated value of the drugs is just over $1,800.

8.  The defendant has a lengthy criminal record.  He has appeared before the courts on 33 occasions for a variety of offences.  In relation to drugs offences, the defendant has 11 convictions recorded against him but they are all for possession of dangerous drugs.  There are none recorded for trafficking.  The defendant’s last court appearance was in May of 2012 when he was sentenced to 3 months’ imprisonment for non-drug-related offences.  I am told that he was discharged from prison on 13 June that year.

9.  In mitigation, I am told that the defendant is 40 years of age.  He was educated to Primary 5 level.  The antecedent statement says that he is a drug addict, and that has been confirmed by Mr Leung who appears for him today.  He has worked previously as a cook and an electricity worker attending to neon lights and signboards.

10.  As Mr Leung has quite rightly said, the only real mitigation in this case is the fact the defendant has pleaded guilty to the offence, and he commented also that immediately upon arrest, the defendant told the police that the drugs found in his pocket were for his own consumption.  Unfortunately, the government chemist certificate has put the two bags together for the purposes of analysis, and the joint total weight is 4.13 grammes.  It is also suggested by the defence counsel that this offence does have an element of entrapment.  It was the undercover police officer who contacted the defendant and arranged the drugs transaction.

11.  The authorities relating to trafficking in “Ice” state that for trafficking in this quantity of drugs, the relevant sentencing guideline is between 3 and 7 years’ imprisonment.  I accept that part of the drugs recovered from the defendant were for his own consumption.  I also take into account the circumstances in which the transaction took place. 

12.  Normally, trafficking in this quantity of drugs would attract a sentence of about 4 years’ imprisonment as a starting point. Given the circumstances of the offence and the fact that some of the drugs were for his own consumption, I propose to take a starting point of 3 years for Charge 1, and I reduce that by one-third to reflect the defendant’s guilty plea.  The defendant on Charge 1 will go to prison for 2 years.

13.  As regards the second offence, possession of apparatus, I take a starting point of 6 months’ imprisonment for that offence. I reduce that by one-third to reflect the defendant’s guilty plea.  The sentence on that will be 4 months’ imprisonment.  Having considered the question of totality, I have decided that 2 months of that sentence should run consecutive to the sentence in respect of Charge 1.  So the total sentence will be one of 2 years and 2 months’ imprisonment.