HKSAR v. Au Yeung Ka Lok

HCCC 295/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 295 OF 2017

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

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COURT:

The defendant pleaded guilty before a magistrate to one count of trafficking in a dangerous drug and was committed for sentence. The total quantity of the dangerous drugs involved are 457.59 grammes of cocaine and 7.55 grammes of ‘Ice’.

The estimated street value of the cocaine amounts to over HK$538,000 and the value of the ‘Ice’ is around HK$2,800.

On 13 September 2016, the defendant was arrested by the police together with his girlfriend in an anti-narcotic operation at the carpark of Metro Harbour View in Mong Kok. At the time of the arrest, the defendant and his girlfriend were inside a private vehicle about to drive away from the carpark.

A search was performed on the vehicle and four plastic bags with cocaine inside were found hidden inside a torch. The defendant and his girlfriend then brought the police to their residence at Metro Harbour View and more cocaine and the ‘Ice’ were found at different places inside the premises. The police then searched the vehicle again and more cocaine was found inside a storage compartment therein.

Under caution, the defendant said the drugs were his for selling to others and they had nothing to do with his girlfriend.

The defendant is 36 years old. He was educated up to Form 3 level. He lives together with his girlfriend at the subject premises before his arrest. He has nine previous convictions; three of them are possession of dangerous drugs and two are trafficking in dangerous drugs. For the two cases of trafficking in dangerous drugs, he was sentenced for 4 years and 2 months’ imprisonment in September 2008 and 5 years and 4 months’ imprisonment in November 2011. In other words, he committed his second trafficking in dangerous drugs case shortly after he has served his sentence for the first one and committed the present offence shortly after he has served his sentence for the second one.

In mitigation, Ms Ku, counsel for the defendant, submitted that the defendant is a drug addict. He started taking ‘Ice’ since 2004 and started taking cocaine six months before his arrest. Ms Ku submitted that some of the cocaine and two-thirds of the ‘Ice’ in this case was for the defendant’s own consumption. She asked this court to take into account this factor in sentencing the defendant but she indicated that a Newton hearing is not necessary.

Trafficking in dangerous drugs is a very serious offence. People committing this offence will inevitably face a considerable term of imprisonment. The length of imprisonment mainly depends on the quantity of dangerous drug involved.

For trafficking in cocaine, this court should follow the tariff laid down in R v Lau Tak Ming [1990] 2 HKLR 370 and AG v Rojas [1994] 1 HKC 342. For trafficking in cocaine of a quantity between 400 grammes and 600 grammes, a starting point of 15 to 20 years’ imprisonment should be adopted. In the present case, if only the quantity of the cocaine involved is considered, the appropriate starting point should be 16 years and 5 months’ imprisonment.

The drugs involved in this case is not only cocaine but also ‘Ice’. Ms Ku has helpfully prepared a table of calculations setting out the appropriate starting point to be adopted in applying different tests for consideration of sentence in cases involving cocktail drugs.

In the present case, the ‘Ice’ involved is relatively insignificant when compared to the quantity of the cocaine. Applying different tests, the appropriate starting points arrived at are only 2 to 3 months on top of the starting point if only the quantity of cocaine is taken into account in sentencing.

I accept, considering the records of the defendant and his urine test result, that a material portion of the ‘Ice’ was for his own consumption, but I do not accept the quantity of cocaine for the defendant’s own consumption is in any way significant in view of the large quantity of cocaine involved. In the circumstances, in my view, the appropriate starting point to be adopted in the present case should be 16½ years’ imprisonment.

This is the third time the defendant committed this kind of offence. He committed the same offence shortly after he served his sentence, and he did it again. In my view, the sentence should be enhanced this time for the purpose of deterrence. In this regard, I would enhance the starting point by 18 months to 18 years’ imprisonment.

There is no other mitigating factor apart from the defendant’s guilty plea.

In the circumstances, the appropriate sentence if convicted after trial is 18 years’ imprisonment. Giving a full one-third discount for the defendant’s early guilty plea, the sentence is reduced to 12 years’ imprisonment.