HKSAR v. LEUNG MAN YIU

HCCC 282/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 282 OF 2012

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: Before me, the defendant has pleaded guilty to a count of unlawfully trafficking in a dangerous drug, namely a total of 939.91 grammes of substances containing 856.91 grammes of cocaine which was found inside a vehicle driven by him, in the evening of 19 March 2012, inside Allway Gardens Car Park, Allway Gardens, Tsuen King Circuit, Tsuen Wan, New Territories, in Hong Kong. These substances were contained in a large number of plastic bags inside the vehicle.

Upon arrest, and in a cautioned video interview later, the defendant frankly admitted that he was first given the drugs in the morning and was instructed, in the afternoon, to deliver them to a place, which he was in the process of doing when caught. He was promised to be paid $7,500 after the job. He committed the offence purely to earn the money because he had lost his job several months ago.

He has nine previous convictions, none drug-related. The last one was driving while under the influence of alcohol which resulted in his being disqualified from driving with the consequence that he lost his job of being a driver. All the criminal offences of which he was convicted before the last one were committed in 1991, 1994 and 1997, the last of which took place about 14 years before the present offence.

It seems to me that he was thinking of making quick money when he committed the present offence. This is also the opinion of his parents who write to me to tell me that the defendant is a filial son, with an example of his taking two jobs at the same time to help while the father was suffering from intestinal cancer five years back. They, as well as the defendant’s girlfriend, all ask for leniency for the defendant.

I consider it unfortunate that this young man took the risk of trafficking in such a large quantity of cocaine for the sake of making quick money. But for the fact that he had driven while having drunk alcohol back in the latter part of 2011, he would not have lost his job and he might not have committed the present offence. However, there is absolutely no excuse for his assisting in this heinous trade.

In The Queen v Chang Chen Liu Sa [1994] 3 HKC 685, it was held that cocaine hydrochloride was to be equated with salts of esters of morphine in sentencing. It was considered that 20 years’ imprisonment was an appropriate starting point for trafficking in 713.11 grammes of a mixture consisting of 595.37 grammes of cocaine hydrochloride and 491 millilitres of a solution of which 15.37 grammes was cocaine hydrochloride. The total quantity of cocaine involved was slightly over 610 grammes.

Mr Dick Lee, for the defendant, refers me to HKSAR v Abdallah [2009] 2 HKLRD 437 at page 431, paragraph 41, where the Court of Appeal has set the guideline starting points for trafficking, after trial, for heroin and cocaine alike, for quantities above 600 grammes. For 600 to 1,200 grammes, 20 to 23 years of imprisonment.

I agree with Mr Lee that there is no aggravating factor, as mentioned under paragraph 42 of that case, in the present case. Mr Lee urges me to pass a lenient sentence on the defendant for his deep remorse, as shown in the letter he has written to the court, and the full family support from his parents and girlfriend. He says that the greatest punishment for the defendant is the fact that, for a long time, he is unable to accompany his daughter, who is presently aged 7 years, in the process of her growing up. His divorced wife has the daughter’s custody.

The defendant having a record of conviction does not, and cannot, be considered to increase his sentence. It simply means that no reduction is to be allowed which may be awarded to a person without any criminal record. In the present case, especially where the records were mainly incurred over a decade ago, I do not take them into consideration.

Personal circumstances will hardly make any difference in sentencing, while the offence involved is so grave and serious as drug trafficking that the defendant has committed. I am, however, not oblivious of the defendant’s remorse, which seems to me to be true, and the family members’ support.

I am therefore imposing a sentence which is allowable under the law and which is a lenient one on the defendant, namely, by adopting a starting point of 21 years of imprisonment. This is reduced by one-third for the defendant’s guilty plea and his remorse.

The result is that he is sentenced to 14 years’ imprisonment.