HKSAR v. LEUNG WAI KIN

DCCC 531/2021

[2021] HKDC 1462

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 531 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant was convicted of a charge of trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134 on his own plea and agreement to amended Summary of Facts.

Facts

2.  On 27 February 2021, at around 12:59 am, police intercepted the defendant outside 43 Mody Road, Tsim Sha Tsui, Kowloon.  Upon search, five resealable and stapled plastic bags containing a total of 0.59 grammes of a solid containing 0.55 grammes of cocaine were found wrapped in a scrunched tissue in the right pocket of the defendant’s jacket.

3.  Upon enquiry, the defendant made admission to the police and said that he had some more drugs on him.  Meanwhile, the defendant reached inside his underpants and pulled out totally two large transparent resealable plastic bags containing a total of 55 smaller transparent resealable and stapled plastic bags containing a total of 7.35 grammes of a solid containing 6.81 grammes of cocaine.

4.  The defendant was arrested for trafficking in a dangerous drug.  Cash in the sum of $3,575.10 and a mobile phone were later found on the defendant.

5.  Collectively, the defendant was in possession of 7.94 grammes of a solid containing 7.36 grammes of cocaine with a total estimated street value of $13,506.

Criminal Record

6.  The defendant has 6 previous criminal convictions, all unrelated to dangerous drugs.

Mitigation

7.  The defendant was born in Hong Kong.  He is aged 34, married with no children.  His wife is a mainlander and living in mainland China.  He now lives with his mother at a public housing unit.  His mother was unemployed, was recovering from cancer and depression and receives CSSA per month.  The defendant is the sole caretaker of his mother and is required to accompany his mother for hospital treatments on a regular basis. 

8.  The defendant is educated up to Form 3.  Prior to his arrest, he had been working as a waiter earning about $12,000 per month, of which he contributed $3,000 to household expenses.

9.  Defence counsel conceded that the Court of Appeal has laid down clear sentencing guideline for trafficking in cocaine.[1] He also referred this court to two other cases in the District Court for consideration. 

10.  He said that because of the pandemic, the defendant was employed only 3 to 4 days a week and therefore substantially reduced his monthly income.  In order to earn quick money for the livelihood of himself and his mother, he foolishly worked as a dangerous-drug courier. 

11.  He submitted that defendant is now deeply remorseful and he co-operated with the police upon arrest, that he pleaded guilty at the earliest opportunity and that he vows not to reoffend.  He urged this court to give the defendant a one-third sentencing discount by reason of his guilty plea. He also submitted to court the mitigation letter written by the defendant.

Discussion

12.  Before sentencing, this court has clearly considered mitigation by defence counsel, including the mitigation letter from the defendant. 

13.  The maximum sentence on conviction upon indictment for this offence is a fine of $5 million and imprisonment for life.

14.  As conceded by defence counsel, for trafficking of cocaine, following the guidelines laid down by the Court of Appeal, the appropriate sentence starting point here is 4 years 2 months’ imprisonment. 

15.  Trafficking in dangerous drug is a very serious offence and personal background of the defendant is seldom a valid mitigating factor.

16.  Urine test performed on the defendant found no trace of cocaine in his urine sample and therefore suggests that the dangerous drug seized on the defendant was not for his own consumption.

17.  Considering the mitigation done on his behalf, the most valid and mitigating factor is that of his guilty plea, of which he is entitled to full one-third sentencing discount.  His sentence is therefore reduced to 2 years, 9 months and 10 days’ imprisonment, and the defendant is so sentenced.