HKSAR v. LEONG KAM IO

DCCC 1049/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1049 OF 2015

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Reasons for Sentence

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1.  The defendant has pleaded guilty to one offence of trafficking in a dangerous drug.  The offence arises out of a stop and search of the defendant on 7 August 2015 in Sham Shui Po in Kowloon.

2.  The defendant was seen acting furtively and then stopped by the police and a search was conducted upon him.  In his left‑front pocket of his trousers the drugs were found there were a total of 135 packets of suspected dangerous drugs containing a total of 12.49 grammes of heroin hydrochloride.  When the defendant was arrested for trafficking in the dangerous drug under caution upon his arrest he immediately said the dangerous drug was for his self-consumption only. 

3.  He then took part in a further video-recorded interview giving more details of that saying he purchased the drugs for between 13 and 14 thousand earlier that day.  He paid in cash, bought in bulk and because he needed to work and could not go to the Kweilin Street to purchase too often.  He was a drug addict consuming the drug by chasing the dragon, consuming it twice a day spending about $400 a day working as a delivery man.

4.  There was a search of his residence.  No paraphernalia or contrabands or suspicious items were found in his residence.

5.  The heroin itself is valued $15,215.

6.  The recital in the facts, the defendant admits that he possessed the heroin involved for the purpose of unlawfully trafficking, so a conviction of that offence is appropriate.

7.  As far as the defendant’s background is concerned, he is a 57-year-old male, worked as a delivery man for restaurants and has, according to the proof of evidence in his antecedents statement, been addicted to heroin for 30 years.  He is single and he lives alone.

8.  The defendant also has a large number of previous convictions.  There are a total of 84 conviction appearances in court.  A large number of those are for possession of a dangerous drug and his convictions for that offence started in 1989.  In fact, he has up until 2015, 26 convictions for that offence and has been sentenced to various sentences of imprisonment for his addiction, none of which appears to have cured him of that illness.  He has also convictions of various petty crime which no doubt assisted in financing his addiction.

9.  The defendant in his record of interview said he was a drug addict and said so also in his antecedents statement.  The conviction record provides considerable support for that proposition.  The defendant is clearly a long-term addict to this drug.

10.  In mitigation, the defendant puts forward two factors.  Firstly, his plea of guilty; and, secondly, the fact that he says he would consume a substantial or I think what is now described as a significant portion of the drugs himself.  I note, firstly, there is clear evidence the defendant’s addiction for over a long term so he must be hardened and a long-term consumer of the drug and, secondly, the drugs when found were in readily consumable portions divided up into 135 separate doses from appearance.

11.  The Court of Appeal has most recently looked again at the issue of self-consumption in the case of HKSAR v Tam Ling Yuen CACC 159/2015 where it reviewed of number of authorities.  I think in summary I can say that the court says that where the sentencing court satisfied that a significant portion of drug is for the defendant’s self-consumption, then discounts of between 10 to 25 per cent from the original starting point can be granted depending upon the court’s assessment of the amount of the drug the defendant would consume himself.

12.  Of course, such an assessment is somewhat subjective because it is always going to be a potential figure.  The drugs were seized before the defendant has had a chance to consume any of them.  It is a potential figure, it is an estimate as to what the defendant would consume. 

13.  The defendant is no doubt a heavy user, he said so in his record of interview.  The figure he gave was consuming around twice a day two to three pellets, spending about $400 a day on it, and also he had bought in bulk so as to avoid having to go to Kweilin Street  because he was working.  So there is ample support for both of those propositions.

14.  So I think in this case one can easily reach the conclusion that the defendant, if he had not been stopped, would have consumed a significant portion of the drug himself.

15.  I turn to the approach to sentencing. 

16.  The actual starting for sentence is governed by guideline sentencing in a case where the drugs are possessed for the purpose of trafficking.  There is no dispute that in this case we are dealing with a quantity of 12.49 grammes of the drug and that falls within the guideline sentence of between 10 to 50 grammes of the drug which a proposed sentence of between 5 to 8 years’ imprisonment is considered appropriate as a starting point for sentence.

17.  This is the defendant’s first conviction for trafficking in a dangerous drug, and also the quantity of drug places it at the lower part of the guideline - certainly just over the figure of 10 grammes where the guideline kicks into 5 years.  So what I shall do for this defendant is take a starting point of 5 years’ imprisonment which is 60 months’ imprisonment.  That is the starting point of the sentence.

18.  Now I must then allocate a discount from sentence for the defendant’s potential self-consumption of the drug.  I will take that in the region, because the figure are not necessarily exact, in the region of 15 per cent because the discount as articulated in the most recent decision of the Court of Appeal should be between 10 to 25 per cent.  That figure would reduce the head sentence by 9 months which gives a starting point for sentence now at 51 months’ imprisonment. 

19.  From this, the defendant is entitled to a one-third discount which, by my calculation, is a further 17 months discount which leads to a final figure or a final sentence of 34 months’ imprisonment and so that is the sentence I will impose on the defendant is 34 months’ imprisonment.