HKSAR v. LIU WILON FELIX

DCCC 551/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 551 OF 2009

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HKSAR
v
LIU Wilon Felix (Defendant)

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Before: Deputy District Judge Eddie Yip

Date: 3 July 2009 at 12:17pm

Present: Mr. Andrew Cheng, Public Prosecutor for HKSAR
Mr. Kwong Mun Fai Sanny, of M/S Sanny Kwong & Henry Ho assigned by DLA, for defendant

Charges: 1 & 2) Trafficking in a dangerous drug (販運危險藥物)

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Reasons for Sentence

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The charges and facts

1. The defendant pleads guilty to 2 charges of trafficking in a dangerous drug, cocaine.

2. At around 11:10 p.m. on 30March 2009, the Defendant was wandering around Un Hong House, Un Chau Estate, Cheung Sha Wan, Kowloon. The police intercepted him for an initial body search with no results. Acting on his request, he was brought back to his residenceat Room 424, 4th Floor, Un Hong House, Un Chau Estate, (“the Premises”) for a full body search. The police found inside his underpants a transparentresealable plastic bag containing a substance (later analysed to be 23.60 grammes of a solid containing 20.98 grammes of cocaine). After arrest and caution, he remained silent. Later on, after another caution he said he was helping someone to deliver the drugfor a reward of several hundred dollars. This constituted the 1st charge.

3. A house search of the Premises yielded from a drawer of a plastic cabinet a transparent resealable plastic bag containing a substance(later analysed to be 15.30 grammes of a powder containing 11.71 grammes of cocaine). After arrest and caution, he said the drugwas also for delivery. This constituted the 2nd charge.

4. Later on, at an interview he said he was helping to deliver both bags of drug for a reward of $500.

Mitigation put forward

5. The Defendant is 23 years of age. He is single. He has received education up to F.5. He has done various odd jobs, last as a transportationworker before arrest. He has a paternal grandmother who is of old age and not aware of the present case. He has one previous convictionof robbery. He committed the present offences because he wanted to repay a debt. His solicitor asks for a concurrent sentence onthe ground that the facts showed one single transaction.

Sentencing principles

Guidelines for sentencing cocaine traffickers

6. In Attorney General v Rojas [1994] 1 HKC 342, Silke VP equated the adverse psychotrophic impact of cocaine with heroin. The sentencing guidelines in R v Lau Tak-ming [1990] 2 HKLR 370 would be directly applicable as follows:

(1)Below 10grammes of heroin, 2 to 5 years’ imprisonment;

(2)10 to 50 grammes, 5 to 8 years

(3)50 to 200 grammes, 8 to 12 years

(4)400 to 600 grammes, 15 to 20 years

(5) over 600 grammes, 20 years upwards.

Consecutive or concurrent sentence

7. In R v Yau Kwok-tung [1987] HKLR 782, the applicant was convicted of two counts of handling stolen goods and one count of robbery. He was sentenced to two years imprisonmentconcurrent on each conviction for handling stolen goods and to four years’ imprisonment, consecutive to the two years’ sentenceson the robbery charge, that is to say, to a total of six years’ imprisonment. On appeal, Roberts CJ said:

The earlier transactions, relating to the handling of stolen goods took place about 2 and 4 weeks before the robbery and were totallyunconnected with it. We see no reason why a Judge should not, in such circumstances, order sentences to run consecutively. (at 783)

8. In Attorney General v Cheung Pit-yiu CAAR 11/ 1988, the respondent was sentenced for 2 charges of trafficking in dangerous drugs which took place on separate dates 15days apart. Cons VP explained the nature of concurrent sentences:

6.This Court has more than once had cause to restate the general principle that concurrent sentences are only appropriate for offencesthat can properly be said to have been committed in the course of a single transaction. That can hardly be said of offences involvingthe possession of drugs, as the judge below correctly believed, on occasions which occurred in separate months. We agree thereforewith the submission of Mr. Cross, who now appears for the Attorney General, that the concurrent sentences in fact passed below wouldbe wrong in principle, unless of course, the principle of overall totality required that in the circumstances no further punishmentshould be imposed.

9. In HKSAR v Woo Chung-hing Cr App 19/ 2002, the Applicant committed two distinct offences of trafficking on separate dates 3 weeks apart. Lugar-Mawson J, whodelivered the judgment in the Court of Appeal, said the Court “can see no reason why the Judge should not have passed wholly consecutivesentences on the Applicant.” (para 9)

Factors relevant to the Defendant’s sentence

10. I have to determine if concurrent or wholly or partly consecutive sentences are called for. The two lots of cocaine bore two differentfeatures:

(1) Different narcotic concentration:

The first lot contained 23.60 grammes of a substance containing 20.98 grammes of cocaine. The narcotic concentration was thus 89%(1st charge). The second lot contained 15.30 grammes of a substance containing 11.71 grammes of cocaine. The narcotic concentration wasthus 77% (2nd charge).

(2) Different form:

The first lot was in solid form (1st charge). The second lot was in powder form (2nd charge).

11. The two lots of cocaine bore two similar features:

(1) The Defendant said they were both for delivery at a reward. There was no evidence to contradict this allegation.

(2) They were found in a situ where the Defendant had exclusive control, possession and control, the first lot inside his underpantsand the second lot inside his residence.

12. After balancing all the features, I am satisfied that the 2 charges formed a single transaction in the sense that the whole bulkwas for trafficking.

13. The Defendant both delivered the drug onto the street and store the drug in his residence. I refer to the guidelines in Lau Tak-ming (above) and consider that the 1st charge, which concerned 20.98 grammes of cocaine, and the 2nd charge, which concerned 11.71 grammes of cocaine, respectively likewise fall within the range of 5 to 8 years’ imprisonment. Itake a starting point of 6 ½ years for each charge. I give a one-third discount for the pleas of guilty. There are no other mitigatingfactors. The sentence is 4 years and 4 months for each. As I have indicated earlier on, the sentences shall be fully concurrent.

Eddie Yip
Deputy District Judge