HKSAR v. Har Tsz Yui

DCCC 393/2018

[2019] HKDC 56

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 393 OF 2018

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to one charge of trafficking in a dangerous drug.

Summary of Facts

2.The defendant was intercepted by patrolling police officers in the Tai Kok Tsui Road area at around 9:15pm on 7 February 2018.  Upon search, 11 plastic bags containing some kind of substance, cash of $11,703.10 and two mobile phones were found on his person.

3.The defendant was arrested for being in possession of dangerous drugs.  He claimed under caution that the ‘K’ was for his self-consumption and asked for a chance.

4.The substance inside the plastic bags were examined by the Government Chemist and found to be a 14.09g mixture consisting of 9.86g of the dangerous drug ketamine.  The Narcotics Bureau estimated the narcotic contents had a street value of $7,791.77 as at the time of seizure.

Previous convictions

5.The defendant has 13 convictions from 7 court appearances.  He has 3 previous convictions for Trafficking in dangerous drugs.  The first two were in October 1996 when he was sentenced to 4 and 5 years’ imprisonment respectively. These two sentences were ordered to run concurrently to the 7 year sentence for a count of conspiracy to manufacture dangerous drugs, which was passed on the same day in the Court of First Instance.

6.The defendant’s last conviction was also his third conviction for trafficking in dangerous drugs, when he was sentenced to 9 years and 6 months’ imprisonment on 11 December 2008.  He was discharged from Hei Ling Chau Correctional Institution on 23 July 2014.

Mitigation

7.The defendant is 44 years old and was educated up to secondary one level in Hong Kong.  He is single and lives with his 86-year-old mother.

8.2 years after the defendant’s last discharge from detention, he managed to find work as a driver for an engineering company, commencing on 25 August 2016, earning a basic salary of $15,000.

9.Unfortunately, he was injured in an incident which happened while he was on duty on 29 September 2017.  Two of his ribs were fractured and he was on sick leave for about 3 weeks.

10.Ms. Lau told the court that as a result of the injuries, the defendant was no longer able to carry on working as a driver and had to resort to casual work.  He settled with his employer for $12,000, and received $40,000 from insurance.

11.Because of his injuries, the defendant was in pain and that was why, 5 months later, when his friend suggested for him to deliver the ketamine, the defendant agreed to do so.  The friend had promised to give the defendant some ketamine and the defendant wanted to use that to ease his pain.

12.The defendant wrote in mitigation that he had had time to reflect and realized that he wanted to give back to society as well as to look after his mother in her old age.

Sentencing considerations

13.According to the case of Secretary for Justice v Hii Siew Cheng (許守城), CAAR 7/2006, the sentencing tariff for trafficking over 1 gramme to 10 grammes of ketamine is that of 2 to 4 years’ imprisonment.

14.Upon an arithmetic application of the tariff, I adopt a starting point of 47 months’ imprisonment for 9.86g of ketamine.

15.The defendant is a repeated offender.  He had received lengthy sentences before for committing the same offence.  This is an aggravating factor that the court must take into consideration.  Bearing in mind that it had been 3 and a half years after his last release from prison when he committed the present offence and that he did have stable employment in the interim, but nevertheless recognizing that the defendant had persisted in committing the same offence yet again despite previous sentences, and the need to protect the public from the defendant’s conduct, I find that the sentence should be enhanced by 7 months to 54 months’ imprisonment.

16.It was never part of Ms. Lau’s case that any of the ketamine that the defendant was found in possession of was for his self-consumption.  The only mitigating factor is the defendant’s timely guilty plea.

Sentence

17.The defendant is, therefore, sentenced to 36 months’ imprisonment after granting him the full one-third discount for his plea.