HKSAR v. LEUNG SAI-YUK YUKI

DCCC 544/2019

[2020] HKDC 120

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 544 OF 2019

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Reasons for Sentence

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1.  This defendant, Mr Leung, has pleaded guilty to possession of a dangerous drug for the purpose of trafficking in it. He was found with five pellets of a drug, which he had swallowed. The total narcotic content of all the drug he was found with was 3.46 grammes of heroin hydrochloride - in fact, there were 15 pellets in total - valued at about $3,060. He said he bought the drugs from an unknown man. He had swallowed the 15 pellets when he was apprehended by the police, but he was worried about the fact he would die of an overdose if he actually consumed them. Defendant said he consumed the drugs himself, but concedes today that some of the drugs would be used for trafficking or sale.

2.  As far as his background is concerned, he is aged 43 and is a separated or single man; studied up to Form 3 and left school. 

3.  His criminal record shows that he was only recently released from a sentence of imprisonment for trafficking in a dangerous drug, and he has some 48 previous convictions, 18 of which are drug related, three of which were trafficking in a dangerous drug, and most recently in August of 2018, where he received a total sentence of some 26 months’ imprisonment.  He was released from that sentence on 22nd April 2019.

(Discussion with counsel re arrest and release date)

4.  I am told by the defendant it was one week before, which seems to be more accurate, one week before his arrest for this matter.

5.  Defendant took police he had been a drug addict for 17 years, which appears accurate.  Urine specimen collected on admission to custody shows a number of drugs were being consumed by the defendant, which would be opiates and benzodiazepine.  His criminal record and the urine test report show he is a chronic drug addict, a long-term consumer of drugs.  The court can easily draw the conclusion that he would have been consuming drugs, and certainly most likely for some of the drugs he was arrested.

6.  As far as the sentence is concerned, the starting point for sentence in cases such as this are is primarily determined by the guideline sentence.  The starting point for sentence in this case would lie between 2 to 5 years’ imprisonment.  For this quantity of drugs, the starting point should be, based on the guideline, 36 months’ imprisonment. 

7.  There is the aggravating factor of the defendant’s previous criminal record, including his previous convictions, very recent convictions, for trafficking in a dangerous drug. 

8.  I will enhance the starting point by 3 months to reflect that factor and a starting point now of 39 months’ imprisonment.

9.  As I said already, the defendant has established that he would have consumed some part of these drugs.  It has been said that when all or part of the drugs are intended for the trafficker’s own consumption, an ensuing discount of sentence should, depending on circumstances, fall between 10 to 25 per cent.  This is a difficult calculation to make, somewhat speculative, in fact. 

10.  I am satisfied, for the reasons I have set out, that the defendant would consume a significant portion of the drug.  I shall limit the deduction for this factor to one of 6 months.  That reduces the starting point down to 33 months’ imprisonment.

11.  The defendant has indicated a plea of guilty from an early stage.  He is entitled to a full one-third discount from that figure.  This leads to a sentence of 22 months’ imprisonment.  That will be the sentence.