HKSAR v. Lau Yiu Fai

HCCC 353/2017

[2018] HKCFI 512

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 353 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 of one charge of trafficking in a dangerous drug and was committed to the Court of First Instance for sentence.

In sentencing, I have considered the whole circumstances of the case, including its nature and facts, in particular the type and quantity of the dangerous drug involved, background of the defendant and mitigation put forward on his behalf.

The facts of the case may be summarised as follows. The defendant was stopped on the street, and upon his request, was searched in a police station. In the sling bag he was carrying, “Ice” and an electronic scale were found. Under caution, he said he bought the dangerous drug for self-consumption. The quantity of dangerous drug which the defendant trafficked in was 13.7 grammes of a crystalline solid, containing 13.4 grammes of methamphetamine hydrochloride.

I was told that the defendant is now 32 years of age. He received education up to Form 3, and had worked as a construction worker.

The defendant is not a first-time offender. Indeed, he has an appalling criminal record. This is however the first time he has been convicted of the offence of trafficking in dangerous drug. On four previous occasions, he was convicted for possession of dangerous drugs, and for these convictions, he had been sentenced to DATC for three times, and once to 6 months’ imprisonment. The other offences he had committed included AOABH, triad-related offences, deception and various driving-related offences.

Learned counsel for the defence, Mr Yip, asked the court to take into account that the defendant had pleaded guilty at the earliest opportunity, and that around half of the dangerous drugs found was for the defendant’s own consumption. He also told the court that as for the other half, the defendant was requested by a friend with whom he was living together for a few days, after he had a quarrel with his mother to purchase for him.

The defence produced letters from the defendant’s parents separately, and also a letter written by the defendant himself. The parents speak of the good nature of the defendant, and in particular, the mother blamed herself for failing to provide the defendant with a good family background for his development. Both parents asked for leniency on behalf of the defendant. The defendant expressed remorse in his letter.

It was held in HKSAR v Tam Yi Chun CACC 524/2011, that in a case of trafficking in “Ice”, if the narcotic content was between 10 to 70 grammes, a sentence of 7 to 11 years’ imprisonment should be considered.

As regards the assertion of self-consumption, the defendant elected not to testify. In consideration, I took into account that the defendant had conviction record, which indicated that he was a drug abuser. Urine test conducted when the defendant was in custody showed positive results for methamphetamine, and a consistent assertion since arrest. I am persuaded, in the circumstances of the case, to accept that a significant proportion of the drug found, though not as much as half of the quantity, was intended for self-use. In this connection, I have had regard to cases including HKSAR v Wong Suet Hau CACC366/2000, HKSAR v Cheung Man Wai CACC 189/2015, HKSAR v Tam Ling Yuen [2016] 2 HKLRD 572, and the sentencing consideration mentioned in these cases, as well as HKSAR v Yeung Shek Yung CACC 314/2016.

At the same time, even if the court is to consider a sentence for trafficking in half the quantity of “Ice”, a starting point not much lower than 6 years should be considered. I also have to take note that possession of half the quantity of “Ice” by itself carries a substantial imprisonment term. Latent risks, which was, in my assessment, substantial in this case, cannot be ignored.

In all the circumstances, I adopt an ultimate starting point of 6 and a half years. The defendant pleaded guilty to this offence. He is entitled to a one-third discount. Having regard to the whole circumstances, including everything said on the defendant’s behalf by Mr Yip, in my judgment, this is the extent of discount the defendant is entitled to.

Defendant, please stand up. For the above said reasons, I sentence you to an imprisonment term of 4 years and 4 months.