HKSAR v. Au Yeung Wai Man

DCCC 412/2022

[2023] HKDC 263

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 412 OF 2022

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REASONS FOR SENTENCE

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1.In this case the defendant, Au Yeung Wai Man, is charged with and convicted of one count of trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134. He was convicted upon his plea and admission of facts.

2.The facts reveal that at about 6 pm on 4 February 2022, after the police intercepted the defendant’s vehicle in Hung Hom, the police found a total of 23 bags containing in all 42.02 grammes of ketamine inside the vehicle, some empty plastic bags, cash in the sum of $18,300 and two mobile phones. He had about $75 on his person. He admitted that he rented the vehicle at a monthly rent of $7,300 from 21 December 2021 to 21 February 2022.

3.By reason of the above facts, the prosecution contended that the drugs he had with him at the time was for trafficking and he admitted as such. The estimated street value of the ketamine seized is $27,305.

4.Trafficking in a dangerous drug is a serious offence and there is very clear sentencing guideline on trafficking in ketamine. Both the prosecution and the defence took no issue that in the present case it falls within the 10 to 50 grammes bracket, the conviction of trafficking which will lead to a term of imprisonment from 4 to 6 years. Mathematically, this quantity warranted a term of imprisonment of 5 years and 7 months. I do not see any reason in this case to depart from the guideline.

5.The defence in his written submission of mitigation, set out the background of the defendant. He was working as a part-time chef making about $8,000 per month. He is aged 33, had a clear record, married with two sons and living with his wife in Kwai Shing Circuit. I found these background afforded no valid reason of mitigation.

6.The defence lawyer also asked the court to find that part of the drugs was for his own consumption, therefore he should be given a further discount in the total sentence.

7.It is settled law that if the court finds a substantial part of the drugs was for self consumption, the court can exercise its discretion to giving a further discount to the sentence. The evidential burden is on the defence.

8.There is no evidence whatsoever from the defence that a substantial part of the drugs was used for self-consumption. He did not say anything under caution. The defence did not seek to produce any evidence as to his means, his drug-taking habit. In fact, the tests carried out on the defendant revealed that he had only taken cocaine. On the facts in the present case, I found the only irresistible inference was he was trafficking in those dangerous drugs to finance his addiction to cocaine.

9.So I do not find that the defence has discharged the evidential burden of proving a substantial part of the drugs found was for self-consumption. Therefore, there is no reason to make further deduction of the sentence.

10.The only valid mitigation was the fact that he pleaded guilty at the earliest opportunity. In accordance with the direction of the High Court, I will reduce his sentence by one-third of what I would otherwise order, two-thirds of 67 months roughly equal to 44.6 months. I therefore order the defendant be sent to prison for 44 months.

11.I turn to consider about the prosecution’s application for forfeiture. As the defence pointed out that the telephones and the money had nothing to do with the trafficking activities, I do not know why the prosecution would concede that. There is no evidence to suggest such a thing. In my view, if the prosecution should decide to accede such requests, they should first go to the DOJ to ask formal advice. In any event, it is my duty and within my power to consider whether the exhibits seized should be forfeited.

12.Neither the prosecution nor defence had submitted any authority or principle to assist me. I had earlier been under the impression that the discretion should be generally in favour of forfeiture. Upon further research on my own, I realised I had been wrong. It is for the prosecution to prove that the cash and the other exhibits seized were in connection with the trafficking of dangerous drugs.

13.Having considered the evidence as a whole, in particular the defendant’s financial circumstances and the circumstances in which the drugs and the money were seized, I found the only possible inference I could draw is that the defendant was in the process of making delivery of the drugs. The money seized were in connection of the drugs and the telephones used to liaise with buyers or suppliers. The defendant made about $8,000 a month. He had a family, a wife and two children. The wife is a housewife, therefore I have to assume that there are no separate income. I cannot accept the evidence given by the defence counsel that the money was used for his “Lai See”.

14.I therefore order that the exhibits seized, including all the monies found on the defendant and the cell phone together with the SIM cards, namely Exhibit 9 to 15, are to be forfeited.