HKSAR v. LEUNG PAK KIN

DCCC 607/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 607 OF 2014

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Reasons for Sentence

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1. The defendant has pleaded guilty to one charge of trafficking in a dangerous drug, contrary to Section 4(1)(a) and (3) of the Dangerous Drugs Ordinance.

2. The particulars of the offence show that that offence occurred on 3 May 2014 in Yuen Long and the defendant unlawfully trafficked in 14.04 grammes of a solid containing 8.13 grammes of cocaine and 1.38 grammes of a crystalline solid containing 1.35 grammes of methamphetamine hydrochloride.

3. In terms of sentencing, one is concerned with the narcotic content rather than the size of the mixture.

4. The defendant has agreed the facts of the case and I have convicted him on the basis of those facts.

5. A brief résumé of the facts shows that on 3 May this year police were conducting an anti-dangerous-drugs operation at Shun Fat Building in Yuen Long in the New Territories.  I am informed that that the defendant resides in that building.

6. The defendant was intercepted near a lamppost outside the Shun Fat Building at about 11.21 in the evening.  He was searched and in the right pocket of his shorts was found a plastic box and that contained three transparent resealable plastic bags which contained dangerous drugs (and these were listed as Exhibits 1 to 3) and the three plastic bags contained drugs as follows:

(1) one contained 6.93 grammes of cocaine;

(2) another contained 1.20 grammes of cocaine; and

(3) the third bag contained 1.35 grammes of methamphetamine hydrochloride.

7. The defendant was arrested and cautioned.  He admitted that the resealable bags (which were Exhibits 1 to 3) contained dangerous drugs and he said he was selling them to earn money. 

8. The defendant was taken back to his residence and paraphernalia for trafficking in a drug were found:  that was an electronic scale and a black bag containing 30 further transparent resealable bags. Defendant further admitted on seeing this that he used the scales to weigh the dangerous drugs and the transparent resealable plastic bags to hold the dangerous drugs, which, presumably had been previously weighed.

9. The defendant made a video recorded interview later.  In this, he said that the drugs found on him (that is, Exhibits 1 to 3) were mainly for his self-consumption, but he would sell them to others; that he had used the scales to weigh the dangerous drugs and the resealable bags found to hold the dangerous drugs.  He also told the officers he had been addicted to ‘Ice’ and cocaine for two to three years and consumed about a gramme of ‘Ice’ and cocaine each day.

10. The street value of the drugs found is estimated to be about $18,441.  Now, the defendant also had a mobile phone on him at the time of arrest.

11. Those facts were all admitted by the defendant, as were his antecedents.  They show that he is aged 30 years old, that he had worked as a construction worker and waiter.  He is described as being a vehicle technician at the time of his arrest, with a monthly income of $9,000.  We also know that he is currently in a Drug Addiction Treatment Centre.  In his antecedent statement, he said he had been a drug addict since 2011, taking a gramme of methamphetamine each day. 

12. His criminal convictions show that he was originally convicted on 7 June 2011 for dealing with goods to which the Dutiable Commodities Ordinance applies, where he received a community service order.  It would appear he breached the community service order and received a short sentence of imprisonment.

13. On 17 June 2014 he was convicted of possession of dangerous drugs and was sent for treatment at a Drug Addiction Treatment Centre and is currently in receipt of that treatment.

14. I am told that the present offence was committed whilst he was on bail for the possession of dangerous drugs.

15. As far as mitigation is concerned, the major part of the defendant’s mitigation related to the extent to which the drugs found in his possession at the time of his arrest were for his own consumption or for distribution to others.  I will deal with that in a moment.

16. There was some personal mitigation offered, as regards the defendant’s means and financial ability.  I was told he had up to Form 3 education in Hong Kong.  He also has received a certificate for vocational training in vehicle repair and maintenance and had worked in Dah Chong Hong for about two years as an apprentice.  He had also been an air-conditioning technician at a construction site.

17. The information from counsel was, at the time of his arrest, he was earning around $14,000 per calendar month.  He lived with his father and supported him to about the region of $4,000 per month and would spend, he says, about $2,000 per month on dangerous drugs.  He claimed, through mitigation, that the amount spent on the present drugs the subject of the charge was only $8,000, as he had bought in bulk. 

18. Again, the defendant admitted that he was an addict at the time of his arrest.  He says, at present, that he has rid himself of his addiction through the Drug Addiction Treatment Centre training.  That, of course, remains to be seen if that is successful.

19. Through counsel, the defendant has shown remorse and accepts that a sentence of imprisonment is the inevitable outcome of the charge that he faces.  It shows a degree of realism in his approach to these matters.

20. Further mitigation is offered in relation to the facts that have been agreed.  As I said already, the defendant says that the drugs were purchased for a sum of $8,000, which was slightly under the figure of his monthly income.

21. It is said in the mitigation that the defendant was on his return to his home after purchasing the drugs and that would account for the way in which the drugs were found in the bags.  They had not yet been divided or used for consumption by himself.  The defendant was carrying them on his person. 

22. In respect of the paraphernalia found in his residence, the explanation offered through mitigation is as follows:  that the paraphernalia was to be used for the division of the drug into doses for consumption and it was said the scale would be used for that purpose, in order to weigh out the amounts to be consumed and also that he would divide the drug with his friends. 

23. I am no expert on consumption of dangerous drugs, but it seems to me a scale would more be necessary when one is contemplating selling the drug at a certain quantity than consuming it yourself.  But he does accept that the scale would be used to weigh out drugs when it is sold to friends and bagged up in the bags found.

24. The defendant, on arrest, has offered two explanations:  the first one being that he was selling the drugs for money, and the second one that they were for self-consumption but he would also sell to others. 

25. These, of course, are not mutually incompatible and it would appear on first sight that the defendant’s own addiction and the way in which the drugs were found would support the fact that the defendant supported his own addiction through the sale of drugs and one would naturally assume that he would sell them to people known to himself.  So the drugs may well be for his own consumption and also for sale, and the defendant through mitigation says that the drugs were sold to friends at the time he was socialising with them in his home.

26. So the mitigation covered a number of the factors that one has to consider when assessing the degree to which the defendant’s self-consumption of the drug can be taken into account in determining the sentence.

27. It was said that the defendant was not selling for any particular financial gain and he would sell at cost.  Again, that cannot be verified. 

28. It is said also there was no complexity or sophistication in the trafficking of drug, but, clearly, the possession of the scale and the plastic bags indicates the defendant was dividing the drug for what would be for sale.  The inference can be drawn that it would be for sale.

29. Turning to the sentencing itself.

30. The drugs contained a mixture of narcotic content.  It is common ground that we are dealing here with 8.13 grammes of cocaine and 1.35 grammes of methamphetamine hydrochloride.  This is what is described as a ‘cocktail of drugs’. 

31. There have been two approaches to the sentencing where there is a cocktail of drugs:  one is to independently look at the starting points and add them together, and another approach is called the ‘combined approach’, and the combined approach is where the calculation of the applicable sentence for the most and more serious drug in terms of potency is determined, then one takes into account any significant quantities of other less serious drugs.

32. In a case such as this, the approach to the potency of drug is somewhat relative.  Although quantities of ‘Ice’ are sentenced on a higher sentencing range than similar quantities of cocaine, one cannot describe the difference as being particularly outstanding, especially given the quantities in a case such as this.

33. What the combined approach does is allows the court to take a realistic and sensible approach to the drug content that the defendant possesses in this case for the purpose of trafficking.

34. Looking at those quantities and determining the starting point, for the cocaine there is 8.13 grammes.  This places it in the guideline range described as ‘up to 10 grammes of cocaine’, where the figure is between 2 to 5 years’ imprisonment.  Naturally, it is, on quantity alone, towards the upper part of that range.

35. As far as the methamphetamine hydrochloride is concerned, there are 1.35 grammes.  Again, this places it in the range ‘up to 10 grammes’.  The range for sentencing for this quantity, up to 10 grammes, is between 3 to 7 years’ imprisonment and, naturally, again, determination on quantity alone will place the starting point on that range towards the bottom of the range. 

36. One could say the particular starting point for each drug in terms of cocaine would be in the region of 4½ years’ imprisonment and for the methamphetamine hydrochloride in the range of 3 years’ imprisonment.

37. Taking the combined approach, the common sense approach, the rational approach, I consider that the correct starting point for sentence for this quantity of drug would be one of 6 years’ imprisonment.

38. The next matter to consider is the extent to which the defendant’s self-consumption of the drug can be taken into account to ameliorate or lessen that starting point.

39. I have said already in relation to my assessment of the defendant’s mitigation that there are factors that are suggestive of the fact that the defendant may well have consumed at least a part of that drug. He is an addict himself.  In the papers, he has described himself as addicted to both the drugs that we are concerned with here.  He describes himself, through mitigation, as a social trafficker.  These are factors which are difficult to determine and the approach is being described in one case as being an ‘educated guess’.

40. I have referred in outline to the case of HKSAR v Capitania in describing the kind of factors that the court must consider (one must, of course, consider that this particular form of mitigation can be an avenue for abuse of sentencing,  but, normally, one should look at the quantity of drugs and their known value):

(1) the circumstances of the wrapping and such like of the drugs;

(2) where the drugs are discovered;

(3) any paraphernalia that exists;

(4) whether the defendant himself is an addict;

(5) any explanations offered by the defendant on arrest;

(6) the defendant’s means to pay for the drugs; and

(7) his criminal record, if any; and

(8) also, where it is accepted that a significant proportion of the drugs were for the defendant’s own consumption, it would be unnecessary, save in the most exceptional cases where the division is readily quantifiable, for the sentencing judge to specify the relative amounts or proportions, except in the very broadest of terms, and, in such circumstances, the court should adjust the sentence to reflect the fact that not all the drugs were for trafficking. But, again, the court should bear in mind that:

(i) the possession of dangerous drugs itself carries a term of imprisonment; and

(ii) there is a requirement to enhance sentence for simple possession of drugs to reflect the appropriate latent risk factor, which takes into account the risk that some of the drugs intended for self-consumption may nevertheless find their way into the hands of others;

and consideration of these factors may well offset much of the practical value of the mitigation, particularly where certain drugs which are commonly used amongst friends on social occasions.

41. I have also been referred to another case which considers this matter, the very helpful case of HKSAR v Chow Chun Sang, determined as recently as November 2011, CACC 135/2011, and it was held in that case in drug trafficking cases, the fact that all or part of the drugs was for the defendant’s self-consumption was a mitigating factor. 

42. The discount to sentence, depending on individual circumstances, should be between 10 per cent and 20 per cent of the basic starting point.  The exact discount depend on factors, including the total quantity of the drugs involved, the proportion thereof intended for self-use, the nature of the drug, whether the trafficking was for financial gain, whether the trafficking was organised and premeditated, and the defendant’s background and criminal record.

43. We know the quantity of the drug here. 

44. The proportion thereof intended for self-use, the second factor, of course, that depends on the market at the time.  There may well be a large demand for the drug and it could all go to others, or there may be a period of slack and the defendant would consume an element of it himself. It seems to me that is a factor that is somewhat difficult to determine. 

45. The nature of the drug.  Here, we are dealing with cocaine and methamphetamine. 

46. Whether the trafficking was for financial gain. Clearly, there must be an element of financial gain here, given the agreed value of the drug, which is in excess of the defendant’s actual income, so the purchase of these drugs must have involved some element of trafficking in previous amounts. 

47. Whether the trafficking was organised and premeditated.  It appears to be individually organised and clearly is premeditated. 

48. The defendant’s background shows he has an addiction and, as a result of that addiction, has been brought into the criminal courts and determined necessary for addiction treatment.

49. I must, of course, determine to what extent I take into account the defendant’s self-consumption of the drug, although it is not necessary for me to articulate the portion in any detail. 

50. I will approach it in this way.  I will accept that a proportion of the drug may well have been used in certain circumstances for the defendant’s own consumption and I will reduce the sentence of 6 years’ imprisonment by one of 12 months to account for that figure.  That is in the region of approximately 15 per cent. 

51. So I will now take a starting point for sentence in relation to this quantity of drug of 5 years’ imprisonment. 

52. The defendant is entitled, through his plea of guilty, to a deduction of one-third from that sentence. 

53. By my calculations, that leads to a final sentence of 40 months’ imprisonment, or 3 years and 4 months’ imprisonment.

(Discussion with counsel)

54. So 3 years and 4 months, or 40 months’ imprisonment, is the final sentence.