HKSAR v. MA KAI LEUNG

DCCC 793/2017

[2018] HKDC 23

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 793 OF 2017

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REASONS FOR SENTENCE

1.  Ma Kai Leung you have pleaded guilty to one charge of trafficking in 27.37 grammes of heroin; 0.27 gramme of cocaine and 0.14 gramme of methamphetamine hydrochloride (“ice”), contrary to section 4 of the Dangerous Drugs Ordinance[1].

2.  Full particulars of the offence are set out in the facts admitted by you on 5 January 2018.  In summary at around 12:40 a.m. on 9 June last year you were seen entering Room H2 on the 13th floor of National Court at 240-252 Nathan Road in Yau Ma Tei. 

3.  Twenty-five minutes later the police knocked on the metal gate of the room.  You opened the wooden door.  When the police revealed their identity you immediately went back into the premises.  The police then used a crowbar to prize open the metal gate and entered the premises within two to three seconds. 

4.  You were found near the toilet.  PC 10113 searched you and found three mobile phones, $1,170 cash and two keys.  You told the police you lived in the premises. 

5.  During a search of the premises the police, inter alia, found on a folding table in the living room:

(i)   three re-sealable plastic bags containing 2.01 grammes of heroin;

(ii)   seven packets containing 2.76 grammes of heroin;

(iii)   ninety-eight re-sealable plastic bags;

(iv)   one foil sheet;

(v)   two lighters; and

(vi)   an electronic scale.

6.  The police also found on the windowsill inside the toilet an envelope inside which was a re-sealable plastic bag containing 22.6 grammes of heroin.

7.  The next day when you were taken to court and escorted to the cell of West Kowloon Magistracy SPC 52755 noticed you had some paper in the right front pocket of your trousers.  When SPC 52755 asked you to take the paper out of your pocket you ignored SPC 52755 and attempted to put the paper in your mouth.  SPC 52755 grabbed your hand and found in your hand two re-sealable plastic bags containing 0.26 gramme of cocaine; one re-sealable plastic bag containing 0.14 gramme of ice and one re-sealable plastic bag containing 0.09 gramme of a mixture containing heroin.

8.  Under caution and in a subsequent interview you admitted the police did not find the drugs when you were arrested because you had hidden them in your underpants. 

Mitigation

9.  In passing sentence, I have carefully considered everything said on your behalf by Mr Chan together with your mitigation letter.  I take into account you have no previous convictions for trafficking.

10.  I am told that you have been taking heroin for over 20 years[2].  This is consistent with you having told the police on arrest you had the habit of taking No 4 and your criminal record which shows you have been sentenced to the DATC in 2004, 2005 and 2014.  I am told you were last discharged from the DATC in April 2016 having been recalled twice.      

11.  You say that about a quarter of the heroin found in the premises together with the ice and heroin found from your underpants was for your own consumption.  The ice having been for your own consumption the proper plea to have entered would have been not guilty to trafficking in ice[3]. 

12.  Taking into account you are clearly a drug addict and that on admission to Lai Chi Kok after your first appearance in court your urine test was positive for amphetamines and opiates[4], I am prepared to accept that the ice and part of the heroin may have been for your own use.  

Starting point

13.  In R v Lau Tak Ming the Court of Appeal laid down guidelines for trafficking in heroin.  Where the quantity of narcotic is  between 10 and 50 grammes sentence falls within the range of 5-8 years[5].  The guidelines for trafficking in cocaine are the same as for heroin.

14.  Taking into account this is your first conviction for trafficking in drugs I am satisfied the proper starting point after trial for trafficking in 27.37 grammes of heroin together with 0.26 gramme of cocaine is 6 years and 3 months’ imprisonment. 

Own use

15.  In deciding how much weight should be attached to the fact some of the heroin may have been for your own use I have considered the decision in Wong Suet Hau[6], in particular paragraphs 33 and 34 as applied in HKSAR v Chow Chun Sang[7] and HKSAR v Tam Ling Yuen[8] cited by Mr Chan.

16.  In Wong Suet Hau the Court of Appeal said that in most cases the difference will be slight[9].  From the decided cases a discount of between 10-25% has been held appropriate where a significant portion of the drugs were for own consumption. 

17.  A 10% discount would result in a starting point of 5 years and 7½ months’ imprisonment which is appropriate for trafficking in approximately 17 grammes of heroin. 

18.  If a quarter of the heroin as you claim was for your own consumption this would mean you were trafficking in approximately 20 grammes of heroin, which would attract a starting point of about 5 years and 9 months’ imprisonment.  I am satisfied to reduce the starting point below that which would be appropriate for the amount you admit is for trafficking would be wrong in principle. 

19.  Taking into account the quantity of heroin; the packaging; the drugs were found in your residence; possession of drugs carries a sentence in any event; the latent risk factor and that you have no prior convictions for trafficking, I am satisfied the starting point should be reduced by 6 months to one of 5 years and 9 months’ imprisonment. 

20.  I am satisfied possession of a small quantity of ice for your own consumption does not add to your overall criminality and would not have increased the sentence had you also been trafficking in this small quantity of ice.

21.  Giving you full credit for your plea of guilty you are convicted and sentenced to 3 years and 10 months’imprisonment.