HKSAR v. Lee Yin Fung

DCCC 372/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 372 OF 2016

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Reasons for Sentence

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1.The defendant has pleaded guilty to one charge of trafficking in dangerous drugs. The particulars are that on 29 January this year the defendant unlawfully trafficked in namely 69.88 grammes of a powder containing 46.35 grammes of ketamine and 1.21 grammes of a solid containing 0.92 grammes of cocaine. The facts are as follows:-

2.On that day at about 11 pm Police officers lay ambush in Tang Lung Street, Causeway Bay.  The defendant was observed using a remote control to unlock a parked vehicle. The defendant was with another male.  The Police stopped and searched both men.  One packet of ketamine was found in the trouser pocket of the other male and in the defendant’s underwear they found 25 packets containing the ketamine and six packets containing the cocaine.   The Police also found $24,951 on the defendant.

3.Under caution at the scene the defendant told the Police that the drugs belonged to him, he did it because he had no money. In a subsequent video-recorded interview the defendant remained silent.

4.The estimated street value of the drugs totalled $9,000-odd.

5.The defendant is not a man with a clear record. He has six convictions obtained over four court appearances.  In 2003 and 2007 he was convicted of possession of dangerous drugs and in 2010 he was sentenced to 2 years’ imprisonment for trafficking in dangerous drugs.  I note from the facts of that case that he was selling drugs from a vehicle.  In this case the defendant’s best mitigation is his plea of guilty.

6.Mr Booth, on the defendant’s behalf, has said all he can say for the defendant in mitigation.  The defendant is 34 years old, single, and has told me in a letter that his girlfriend as a result of this arrest has left him.  They were to marry and the wedding has been called off.  He is upset that he has disappointed not only his girlfriend but his family. 

7.He was last employed as a driver but when he lost his licence in November 2015 the same employer kept him on as a waiter.  I have a letter from that employer asking for leniency and telling me that he will re-employ the defendant despite his convictions.  He was earning about $18,000 a month of which he gave $4,000 to his aunt who he was living with.  He would also give $5,000 to his mother which included assisting his younger brother in his studies.  The defendant has frankly admitted taking drugs from a young age and submits that part of the ketamine was for his own consumption as was all of the cocaine. He told the Police that he took both cocaine and ketamine several times a day. 

8.There are guidelines for trafficking dangerous drugs and in the authority of SJ v Hii Siew Cheng [2008] 3 HKC323 the Court of Appeal has said that where between 10 to 50 grammes of ketamine is trafficked an appropriate starting point would between 4 to 6 years. Mathematically speaking, for 46.35 grammes of ketamine a starting point of 5 years and 10 months would be appropriate.  The Court of Appeal has said the guidelines for cocaine should follow that of trafficking heroine and I refer myself to R v Lau Tak Ming & Others [1990] 2 HKLR 370 where between nought to 10 grammes is trafficked an appropriate starting point would be between 2 to 5 years.  Here there is 0.92 grammes of cocaine which mean a starting point of 2 years of thereabouts.

9.This is a case which involves more than one type of dangerous drug.  In my view the appropriate approach would be the combined approach.  There is a significant amount of ketamine compared to a much smaller amount of cocaine even though cocaine is a more potent dangerous drug.  It would be appropriate to firstly consider the starting point for ketamine and then enhance that starting point to take into account the quantity of cocaine.

10.It has been stressed in mitigation that part of the dangerous drugs was for the defendant’s own consumption.  The prosecution did not challenge this mitigation.  Drug addicts often resort to trafficking dangerous drugs to feed their habit.  The Court of Appeal has dealt with such a scenario in many authorities and I take into account HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121.  Depending on the facts of each case, there should be a discount applied to a starting point where some of the drugs are for own consumption of between 10 to 25 per cent.  I accept some of the drugs would have been for the defendant’s own use  but I also take into account at the same time there is a latent risk that some of the dangerous drugs he says would have been for his own consumption would still find its way into the hands of others.  Bearing in mind the packaging of the drugs here and the whereabouts of the defendant when arrested, obviously a latent risk does exist. 

11.Another strong mitigating factor, I accept, is that the defendant did try to assist the Police with information.  He was prepared to assist and did give information that although did not lead to an arrest it did confirm information the Police already had.  It means the information was credible. 

12.Defendant, please stand up.  I note all the mitigation put forward on your behalf as well as the letters I have received. I take into account your plea today and your genuine attempt to assist the Police.  I accept that you are a drug addict and some of the dangerous drugs would have been for your own use.  I also note this is your second trafficking dangerous drugs conviction.  I, lastly, take into account the guidelines for trafficking dangerous drugs and the quantity involved here.

13.After taking into account all those relevant factors, I will start for the ketamine a starting point of 5 years and 6 months.  I enhance that starting point by 6 months to reflect the additional cocaine.  That is a starting point of 6 years or 72 months. 

14.According to the authority of Chow Chun Sang and having accepted that mitigating factor, I reduce that starting point by 15 months. That is a discount of just over 20 per cent.  That starting point is now reduced to 57 months. 

15.You have pleaded guilty, you are entitled to a discount of one-third. After that discount is applied the starting point is reduced to 38 months.  I do accept you tried to offer information and had genuinely hoped to assist the Police.  This should always be encouraged.  I therefore reduce that sentence by a further 6 months to reflect that factor.

16.Therefore for this offence you are sentenced to a total of 32 months’ imprisonment.