HKSAR v. DUNG KWONG LUEN

 DCCC836/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 836 OF 2009

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Reasons for Sentence

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1.  The defendant is convicted upon his guilty plea of the following charges: 1st charge, trafficking in dangerous drugs; Charge 2, possession of a dangerous drug; and Charge 3, possession of apparatus fit and intended for the smoking of a dangerous drug.

2.  In sentencing, I have taken into account the whole circumstances of the case, including its nature and facts, in particular, the nature and quantity of the dangerous drugs involved, background of the defendant as well as mitigation put forward on his behalf.

3.  The facts which the defendant admitted may be summarised as follows. In the evening on 27 April this year, the defendant was stopped by police officers after he had alighted from a private car which he had parked near a residential block where he lived. On seeing the police officers, the defendant threw two plastic bags, each containing a small amount of dangerous drug, onto a nearby flowerbed. During a subsequent search of the car, a plastic bag containing more dangerous drugs were found in the gearbox. These dangerous drugs together with those the defendant discarded earlier in the flower bed comprise the dangerous drugs as set out in Charge 1, for which he is alleged to be trafficking in.

4.  Then the defendant was taken back to his home where another search was conducted, and the quantity of cannabis as set out in Charge 2 was found. Also found was a pipe as set out in Charge 3.

5.  Defendant is now 23 years of age. He was educated up to Form 3 and was a redecoration worker by employment.

6.  He is not a first‑time offender. However, only conviction took place in September 2005 when he was convicted of the offence of unlawful sexual intercourse with a girl under the age of 16, a totally different nature of offence, for which he was sentenced to a probation order for 12 months. This is the first time he is convicted of an offence relating to dangerous drug.

7.  In mitigation, the court was told that although the defendant intended to traffic in the dangerous drugs as specified in Charge 1 with a view to earn some money to improve the chance of getting married with his girlfriend, at the same time he might reserve a proportion of the drugs for his own consumption. Learned defence counsel expressly informed the court that the quantity that might be kept for the defendant’s own consumption would not be substantial.

8.  The court was also told that the defendant had started to consume dangerous drug due to the stress created by family disputes arising from his desire to get married with his girlfriend. He was lured by undesirable friends into taking dangerous drugs in the circumstances. Further, with the hope of earning some extra money, he engaged in the dealing of the dangerous drugs in this case.

9.  The court was told that the defendant is now remorseful. He is no longer consuming dangerous drug. Letters from family members, the defendant’s employer and a District Board member were produced in support of the mitigation. The employer said the defendant was a hardworking and trustworthy person.

10.  The case involved trafficking in three types of dangerous drugs, namely, herbal cannabis, 3,4-methylenedioxymethamphetamine and cocaine. I have considered sentencing precedents in relation to each of these dangerous drugs.

11.  It was suggested in R v Tuen Shui Ming AR 12 of 1994, that the tariff for possession of cannabis resin for the purpose of unlawful trafficking in a quantity of under 2,000 grammes is a sentence up to 12 months’ imprisonment. The court also said that since the tariff applied to cannabis resin, when sentencing for trafficking in herbal cannabis as in the present case, the tariff must be adjusted. It was said that, for persons with herbal cannabis, except in cases where very large quantity is involved, a discount of up to a year from the sentence that would have been imposed had they had a similar amount of cannabis resin would properly be given.

12.  Methylenedioxymethamphetamine is commonly known as “Ecstasy.” New sentencing guideline was laid down in the case of SJ v Hii Siew Cheng [2009] 1 HKLRD 1. In that case, the court held that for trafficking in a quantity of 1 to 10 grammes of “Ecstasy,” a sentence between 2 to 4 years’ imprisonment should be considered.

13.  As regards sentencing for trafficking in cocaine, it was held in AG v Chang Chen Liu Sa [1995] 1 HKCLR 69 that the sentencing guidelines as laid down in R v Lau Tak Ming [1992] HKLR 370 were applicable. It follows that for trafficking in a quantity of up to 10 grammes of cocaine, the sentence should be 2 to 5 years’ imprisonment.

14.  Having considered the whole circumstances of the present case, I see no reason to depart from the guidelines as laid down in these cases. Since the present case involved trafficking in three kinds of dangerous drugs, I have considered the sentencing approach by reference to HKSAR v Cheng Yat Ming CACC 455 of 2006 and HKSAR v Yip Wai Yin [2004] 3 HKC 367.

15.  It was said in HKSAR v Cheng Yat Ming that the difficulties being faced in cases of the kind where either an individual or a combined approach is adopted only arises where the sentencing brackets for the types of drugs are markedly different. Where drugs of a comparable kind such as heroin, cocaine and methamphetamine hydrochloride are being trafficked, the combined approach where a global sentence is taken can usually be used. In an earlier passage, the court described the combined approach as one where a sentence for the most serious drugs can be calculated before an upward adjustment can be made to take into account significant quantities of the other less serious drugs in terms of their potency.

16.  Cocaine is all along recognised as a drug which is more serious in terms of its potency and in terms of sentencing trafficking in it results in a heavier sentence than for trafficking in same quantity of “Ecstasy” and cannabis. That said, the difference in seriousness between cocaine and “Ecstasy,” if there is any at all, has been very much reduced in its significance after the decision in Hii Siew Cheng.

17.  In the context of the present case, I am of the view that it is appropriate and sensible to base the sentence on a starting point adopted for the drug of cocaine with consideration of whether any adjustment is required for trafficking also in other drugs, especially “Ecstasy.”

18.  The quantity involved in Charge 1 was 8.47 grammes of a solid containing 5.38 grammes of cocaine, 142.93 grammes of cannabis in herbal form and 10 tablets containing 1.04 grammes of “Ecstasy.” In my judgment, for trafficking in the whole quantity of the different dangerous drugs in the present case, a starting point of 3 and a half years is appropriate.

19.  The defendant pleaded guilty. He is entitled to a one-third discount for that factor alone.

20.  It was said in mitigation that it was the desire of the defendant to reserve some of the dangerous drugs he was trafficking in for his own consumption. In all the circumstances of the case, in particular, taking into account the defendant’s admission and finding of drug-consumption apparatus at his home, I am satisfied that the defendant did consume dangerous drugs himself.

21.  Learned defence counsel said the quantity that the defendant may reserve for his own use would not be substantial. I have considered the matter on the basis that only an insignificant quantity would be so reserved. After all, the defence case is that the defendant intended to traffic in the dangerous drug to earn extra money.

22.  I consider the matter, having regard to cases such as HKSAR v Wong Suet Hau [2002] 1 HKLRD 69 and HKSAR v Cheung Ching Fai CACC 443 of 2005. It was said in the former case that the sentence should be adjusted to reflect the fact that not all the drugs were for trafficking. However, it was also said that the courts need to bear in mind that “the quantity accepted as having been intended for self-consumption carries a sentence in any event and that this might itself be aggravated for the latent risk factor, so that at most two mixed cases, the difference in sentence, if any, will be slight.”

23.  It was mentioned in the latter case that any reduction to be afforded to the defendant might be offset by the element of sentence that was required to be imposed to reflect the dangerous drugs of which the defendant was possessed only together with an element to reflect the latent risk factor.

24.  I have said that, in my judgment, the quantity to be reserved for the defendant’s own use would not be significant. If I am wrong, that would then mean a high degree of latent risks exists. I also bear in mind the length of sentence for simple possession of the drugs such as cocaine and “Ecstasy” if an imprisonment term is appropriate. I also bear in mind that the inference from the whole circumstances must be that the defendant was aware that he was in possession of three types of dangerous drugs. In all the circumstances, I am of the view that 1 further month’s discount is appropriate for this matter.

25.  Based on the matters aforesaid, I sentence the defendant to 27 months’ imprisonment for the 1st charge.

26.  For the 2nd and 3rd charges, if they are considered alone, an imprisonment term may not be required for a first offender although DATC treatment may be considered suitable after having consulted a report. Although the defendant will be imprisoned anyway for the 1st charge, in the circumstances of the case, I do not consider it appropriate to impose an imprisonment term on the defendant just because it means no actual difference if the sentences are ordered to be concurrent.

27.  I am of the view that a fine is appropriate for each of the other charges. Having taken totality into account, I impose a fine of $1,000 for each of Charge 2 and Charge 3.

(Discussion re fine)

28.  With consent from the defence, the two fines be deducted from bail.