HKSAR v. YANG ALEXANDER LEO

DCCC 1136/2017

[2018] HKDC 986

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1136 OF 2017

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REASONS FOR SENTENCE

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1.  Defendant Yang Alexander Leo pleaded guilty before me to 2 charges of trafficking in a dangerous drug and one charge of possession of a dangerous drug.  The particulars of the offences follow.

2.  Charge 1: Mr Yang on 31 July 2017, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 253 tablets containing 43.40 grammes of 3,4-methylenedioxymetham-phetamine.

3.  Charge 2: Mr Yang on 31 July 2017, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 28 grammes of cannabis in herbal form.

4.  Charge 3: Mr Yang on 31 July 2017, at House No 5, Yung Shue Long Old Village, Yung Shue Wan, Lamma Island, in Hong Kong, had in his possession a dangerous drug, namely 1.55 grammes of cannabis in herbal form.

Admitted Facts

5.  The facts admitted by Mr Yang may be summarized as follows.

Charges 1 & 2

6.  On 25 July 2017, a postal packet (“Postal Packet 1”) sent from the Netherlands was examined at the Air Mail Centre of the Hong Kong International Airport.  Postal Packet 1 contained 253 tablets containing a total of 43.40 grammes of MDMA (otherwise known as Ecstasy).  This postal packet was addressed to a person bearing the name of Mr Yang with an address at House 5, Yung Shue Long Old Village, Yung Shue Wan, Lamma Island, Hong Kong.

7.  On 31 July 2017, a post officer discovered a postal packet from the UK (“Postal Packet 2”) bearing the same recipient’s name and address as those of Postal Packet 1.  Postal Packet 2 contained 28 grammes of cannabis in herbal form.

8.  Mail notification cards for Postal Packet 1 and Postal Packet 2 were posted to Mr Yang at the same address.

9.  On 31 July 2017, Mr Yang approached a counter at the Lamma Post Office and presented the mail notification cards and asked to collect the 2 postal packets.  They were duly passed over to him.  At this time, Mr Yang was arrested.

10.  Under caution, Mr Yang admitted that the two packets belonged to him: one was marijuana and the other was drugs he purchased from a website; he said that the marijuana was for his party and personal use.

Charge 3

11.  On the same day, a house search was conducted at House 5 where a bag containing 1.55 grammes of cannabis in herbal form was found.  Mr Yang was then arrested and under caution, he admitted the cannabis there was for his own use.

Criminal record

12.  Mr Yang enjoys a clear record.

Antecedents

13.  The agreed antecedents statement shows Mr Yang to be aged 19 (18 at the time of the offence); that he was a university student in the UK; that he was on vacation and living with his family in Lamma Island at the time of arrest.  Mr Yang claimed he had problem of anxiety and bipolarism.

Mitigation

14.  Mr Jonathan Kwan of counsel mitigated on behalf of Mr Yang with the assistance of a Mitigation Bundle.  In addition, Mr Kwan has submitted two more mitigation letters in court.

15.  The mitigation submissions may be summarized as follows.

16.  Mr Yang was born in Auckland and is a French national.  He moved to live in Hong Kong in 2001 when he was 2 to 3 years old.  His parents divorced when he was 5.  Mr Yang resides with his biological father and younger sister of 15 years old.  Both biological parents are in court to show their love and support.

17.  Prior to arrest, Mr Yang was studying for a degree in Sports and Exercise Science in UK which he cannot go back to because of this incident.  Even so, he has furthered himself by having obtained international qualifications by online means of personal trainer and exercise specialist.  By studying for and obtaining these qualifications, he was able to gain employment with a sports educator which teaches children sports; he was earning $15,000 a month.  Mr Yang even started his own company in March 2018 dealing with fitness coaching.

18.  Mr Yang purchased the drugs of this case from an online source for purposes of parties and self-use. It is submitted that the minimum purchase order for Ecstasy was 250 tablets. It is submitted that the primary purpose of purchasing both types of drugs was for his own use although Mr Yang admitted that when he went to parties, if close friends asked him for drugs, he would be willing to provide them for their use.

19.  After arrest, he went to seek medical help which showed that he was drug-dependent having its root various psychological disorders he has been suffering for some time.

20.  It is submitted that Mr Yang has made positive changes to his life since arrest and he has addressed his drug problem by joining various out-patient and voluntary programmes.

21.  Mr Kwan asks for an individual approach in sentencing for Charges 1 and 2 and asks for concurrent sentences.  For Charge 3, Mr Kwan asks for a small fine.

22.  Mr Kwan submitted for my consideration the following authorities:-

(a) HKSAR v Chow Kam Lung [2010] 4 HKLRD 253;

(b) Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1;

(c) Attorney General v Tuen Shui Ming & Anor [1995] 2 HKCLR 129;

(d) HKSAR v Alam Waseem, HCCC 168/2016;

(e) HKSAR v Touray Edrisa, CACC 174/2014;

(f) HKSAR v Castano Arango Jose Reniel, CACC 124/2010;

(g) HKSAR v Wan Lau Mei, CACC 389/2013; and

(h) HKSAR v Amnuaychoke Nopporn, CACC 441/2001.

23.  In respect of Charge 1, Mr Kwan suggests a starting point of 5 years’ imprisonment, asks for a discount of 20% for self-use, and 1/3 discount for the plea of guilty.  In respect of Charge 2, Mr Kwan suggests a starting point of one month’s imprisonment, and asks for the same discounts.

Sentence

24.  I have considered the mitigation submissions including the authorities put forward by Mr Kwan.  I have read the mitigation letters carefully.

25.  I have read the witness statement on street value of the drugs in this case without objection from the defence.

26.  Trafficking in a dangerous drug is a serious offence and a deterrent sentence is called for.

27.  The case of Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1 set down tariff sentences for trafficking in the drug Ecstasy.  For trafficking in 10 to 50 grammes of the drug, the sentence should be between 4 and 6 years’ imprisonment.

28.  The case of Attorney General v Tuen Shui Ming & Anor [1995] 2 HKCLR 129 set down tariff sentences for trafficking in the drug cannabis resin.  For trafficking in under 2,000 grammes of the drug, the sentence should be up to 16 months’ imprisonment. However, where the drug was herbal cannabis rather than cannabis resin, a discount of up to 12 months should be applied to the figure to arrive at the appropriate starting point.

29.  The cases of HKSAR v Castano Arango Jose Reinel, CACC 174/2014, and HKSAR v Touray Edrisa & Anor, CACC 124/2010, clearly speak to the appropriateness of a fine as a punishment for possession of a small amount of herbal cannabis.

30.  Because of Mr Yang’s somewhat peculiar background, I have decided to be lenient with him.

31.  In sentencing Mr Yang, I will adopt the starting points suggested by Mr Kwan on Charges 1 and 2, and will apply the discounts asked for by him.  There are no other mitigating factors of sufficient weight to warrant any further discounts.

[Mr Yang, please stand]

32.  Hence, for Charge 1, Mr Yang will go to prison for 32 months.

33.  For Charge 2, Mr Yang will go to prison for 16 days, which will be served concurrently with the sentence for Charge 1.

34.  For Charge 3, Mr Yang will pay a fine of $4,000 which will be deducted from his bail money.