HKSAR v. LEUNG SAI HUNG

DCCC 881/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 881 OF 2012

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Reasons for Sentence

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1.  Defendant appeared before me this afternoon and pleaded guilty to a total of three charges. The 1^st charge is “Trafficking in a dangerous drug”, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The 2^nd charge is “Possession of a dangerous drug”, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134 and the 3^rd charge is “Possession of apparatus fit and intended for the inhalation of a dangerous drug”, contrary to section 36(1) and (2) of the Dangerous Drugs Ordinance, Cap 134.

2.  I do not intend to repeat the particulars of the offence of each charge.  For details, please refer to the charge sheet.

The facts

3.  This is a simple stop-and search case.

4.  In the afternoon of 25 June 2012, two plainclothes officers, PW1 and PW2, put the vicinity of Kin Ching House, Kin Ming Estate, Tseung Kwan O, New Territories, under close surveillance.  The defendant was later seen by the officers at about 4.36 pm when he was approaching the entrance of Kin Ching House lift lobby.  As the defendant was acting furtively, one of the police officers intercepted him for a body search. 

5.  On demand, the defendant took out a suspicious object which was hidden underneath the pair of trousers that he was wearing which was a transparent plastic bag containing some white powder of suspected heroin.  The police officer immediately arrested the defendant. 

6.  The defendant later then took the police officers to his residence which was at Room 2920, Kin Ching House, Kin Ming Estate, Tseung Kwan O for a further search. 

7.  Upon entering the premises, the officers found inside the premises, inter alia, three suspected “Ice” inhaling bottles which was found on a table in the living room.  Also in the bedroom there were found a red candy box containing two resalable plastic bags with some crystalline solid of suspected “Ice” which was found inside the drawer of a cupboard next to the bed.  There were also found inside the premises a large number of resalable plastic bags and unused plastic sheets.

8.  The defendant was further arrested upon the seizure of the above exhibits.  Under caution, he claimed that the white powder was for his own consumption and he also claimedthe ownership of the “Ice” bottles and the drugs which were found in the premises.

9.  During a cautioned interview, the defendant was at pain to explain that he used about $10,000 to purchase the heroin from one “Ah Keung” in Shenzhen.  He also told the police that he divided the heroin into smaller proportions and into pellets, by way of wrapping them with the plastic bags for the convenience of self-consumption.  As for the “Ice”, he told the police that he purchased the same from another one called “Ah Shing” for about $300 near the Kwun Tong Methadone Clinic.  He was addicted to “Ice” for only about six months before the offence.

10.  He told the police that he was actually receiving CSSA allowance for about $1,800 per month but he claimed that he was also a casual part-time cleaning worker and he earned a daily wage of about $330 to $400.

11.  According to the government chemist’s examination, the suspected heroin in question was in a total of 22.21 grammes of heroin hydrochloride.  The suspected “Ice” was found to be 0.33 gramme of methamphetamine hydrochloride.  As far as the three “Ice” bottles is concerned, it was described by the government chemist as three inhaling devices, each consisting of one bottle inserted with two straws, one of which was lined with tinfoil.  The three bottles contained a total of 303 milligrammes of a liquid containing 0.7 gramme of methamphetamine.

12.  According to the narcotics expert of the Hong Kong Police, the street value of the dangerous drugs in this case were found to be $20,618.06 for the heroin and $774.90 for the “Ice”.  The total street value is therefore $21,392.96.

The background and the criminal records of the defendant

13.  The defendant is 57 years of age. He is married.  He had in the past appeared in the court in 19 occasions starting from 1971 to 2004.  For all those offences (there are altogether 29), 10 of which were drugs-related.  The most serious record is one which was recorded in 2000 which is a “Trafficking in dangerous drugs” offence for which he was sentenced in the High Court to 6 years and 8 months’ imprisonment. According to the record, he was later discharged from the prison in 2005.

14.  Miss Chan, who is appearing for the defendant this afternoon, emphasized to the court the fact that the defendant was very co-operative with the police and has also pleaded guilty in his first available opportunity in the court.  He did not waste the court’s time and he also was sensible enough to receive legal advice and not to pursue to insist that he only possessed the drugs, or even part of it, for his own consumption as far as the heroin is concerned.  In other words, for the most serious charge which is Charge 1, namely, the trafficking of heroin, I would therefore sentence him on the basis of trafficking of the whole quantity of the heroin in the charge.

15.  Miss Chan also emphasized to the court the fact that in relation to Charge 2 and Charge 3, they were committed in the same set of facts and therefore asked the court to consider a concurrent sentence. 

Sentencing considerations

16.  Trafficking in dangerous drugs is of course a serious offence.  Anyone who is involved in this kind of criminal activities and was caught will be expected to be dealt with by the court severely as far as the sentence is concerned.  The defendant should know it better than anyone else because he himself has been sentenced by the High Court back in 2000 for a lengthy sentence already.

17.  Obviously the defendant was a deep-rooted drug addict and he just could not mend his way even after a lengthy imprisonment.  He was only lucky that he was not caught from after 2005 before this offence because I am sure he must have continued to possess or at least consumed dangerous drugs, if not trafficking the same, during this period.

18.  The Court of Appeal has laid down clear guideline for the sentence on the trafficking of heroin.  The well-known case of The Queen v Lau Tak Ming and others[1990] 2 HKLR 370 indicates that for a quantity of 10 to 50 grammes of heroin, the starting point should be 5 to 8 years’ imprisonment.

19.  The present quantity in relation to charge 1 is one of 22.21 grammes of heroin.  Applying the guideline, the proper starting point should be 69 months’ imprisonment.  The defendant pleaded guilty which is the only effective mitigation for which he would be given one-third discount.  The sentence therefore for this charge will be reduced to 46 months’ imprisonment.

20.  For Charge 2, that is a possession of “Ice” offence.  For a possession charge, the usual starting point is 12 to 18 months’ imprisonment. In this case, I shall use the lower starting point which is 12 months.  Also giving him the one-third discount, the resulting sentence for this charge is therefore 8 months’ imprisonment.

21.  I decided that out of the 8 months’ imprisonment in Charge 2, the defendant needs only to serve an extra 3 months to Charge 1, and I order that 3 months of the sentence of Charge 2 will run consecutively to Charge 1 and the balance of the sentence will run concurrently.  The total sentence on Charge 1 and Charge 2 is therefore 49 months’ imprisonment.

22.  Lastly, for Charge 3, I shall use 4½ months as a starting point.  After the one-third discount, the sentence is therefore 3 months’ imprisonment.  Applying the totality principle, however, I would only need the defendant to serve an extra one month to the total sentence in respect of the first two charges. The total sentence on these three charges is therefore 50 months’ imprisonment.