HKSAR v. Lo Yee

DCCC 594/2021

[2022] HKDC 135

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 594 OF 2021

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REASONS FOR SENTENCE

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1.The defendant, Lo Yee, in this case was originally charged with two counts:-

(1)  ‘Possession of poison being Part 1 poison’;

(2)  ‘Trafficking in a dangerous drug’.

2.Upon his plea and admission of facts, he is convicted of the 2^nd count of trafficking.  The prosecution decided not to proceed with the other count.  With the court’s leave, this count is to be kept in the court file and not to proceed without approval of the court. 

3.The facts of the 2^nd count are these.  It was early in the morning on 7 March 2021 when the police saw the defendant having some sort of dealings with another man at Yuk Yat Street, Hunghom.  At the sight of the police officers, the defendant and the male walked across the road and parted ways.  After he was intercepted by the police, the police found a transparent resealable plastic bag on the ground in front of the defendant’s left foot in which there were five plastic bags with 0.6 grammes of cocaine. 

4.Further investigation revealed that inside tucked inside his waist, in the waist of his trousers there were a total of 14 other bags of ketamine, the total weight being 21.17 grammes. 

5.Under caution, the defendant stated that he knew what kind of dangerous drugs they were and that he was there to traffic them.  Upon search, the police found two iPhones on the defendant and cash in the total sum of $30,704. 

6.The estimated street value of the cocaine came to about $860 and the ketamine $11,792. 

7.Trafficking in dangerous drugs has been considered by the Court of Appeal and there are very clear lines for sentencing.  This case involved two kinds of dangerous drugs.  For trafficking cocaine, the quantity involved comes within the bracket of 2 to 5 years’ imprisonment, and the ketamine involved gains within the 4 to 6 years’ imprisonment bracket. 

8.Since there are two types of drugs involved, the Court of Appeal has in the past adopted two different approaches, namely that of individual or combined approaches.  I respectfully agree with what the Court of Appeal’s view in Yip Wai Yin ([2004] 3 HKC 367): namely, while leaving the appropriate approach to be adopted to the individual convenience of the case, the combined approach will often be the correct one. 

9.Mr Lo of the defence has set out the sentencing for different approaches involved and the tests that have been used to gauge the proper sentence.  I will not repeat them.  Mr Lo suggested that according to the different approaches and tested by different tests, the circumstances of this case warranted a total of 5 years’ imprisonment.  To this, the prosecution did not raise any objection.  I do not see any reason I could depart from such estimate.

10.I turn to consider the defendant’s mitigating circumstances.  He has a clear record.  He was young.  He was aged 16 at the time of the offence.  And normally, for a person between 16 to 21, the court would have to be satisfied that there are no other methods of dealing with him before considering a term of imprisonment.  However, the offences involved in this case is so serious, and very fairly Mr Lo conceded that his age and the offence involved mean that there is really no point in going to consider other options. 

11.I am given some details of the circumstances of the defendant’s upbringing.  His mother was a mainlander and his father was from Hong Kong.  They have since divorced.  Although he has a stepfather, they are hardly in contact.  The defendant has only reached Form 3.  He had been unable to secure steady employment.  Committing crimes seemed to be the only ways to make ends meet. 

12.In a perfect world, a young man of the defendant’s age should not be left to fend for himself.  The defendant’s situation is not unique in the sense that when the parents were no longer in a position to take care of him, he has to resort to committing crime. 

13.While this court has all the sympathy for him and often takes the view that young persons should deserve more leeway in sentencing, the nature of these offences goes against such consideration.  The main principle for sentencing in this kind of offences is one of deterrence.  This court has to set out an example, telling the society in general that young age and clear record, they are not excuses for committing such crimes, or otherwise more and more young people will be used by the principal traffickers as fronts to carry on this sort of business. 

14.In the circumstances, I would exercise some discretion in his favour.  I will adopt 60 months’ imprisonment as a starter and reduce it by 3 months in view of his clear record, his unfortunate upbringing and his young age.  He also has pleaded guilty and therefore I will accord him with the usual one-third discount.  Therefore, the defendant is hereby sentenced to a term of imprisonment for 38 months. 

15.I would have to advise the defendant that this court takes no pleasure in sentencing him for a man of clear record and of such young age, but we have to send out a clear message.  I wish he would be able to learn something during his incarceration and maybe learn a skill of trade, so that he can grow up and become a responsible, reasonable and independent person.