HKSAR V Lau Yau Shing

DCCC 1080/2022

[2023] HKDC 1420

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1080 OF 2022

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REASONS FOR SENTENCE

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1.At about 12:55 on 6 July 2022, police party was patrolling near Ying Yip Road, Tseung Kwan O. A private car XJ3376 was seen parking there. A male was sitting in the driver seat, the defendant was sitting in the front passenger seat. Police approached the car and requested the defendant and the male to get off the car and a search was conducted on the car.

2.The following items were found in a black bag which was stored inside the storage compartment between the middle of the driver’s seat and the front passenger seat: -

(a)  31 plastic bags containing a total of 5.67 grammes of a solid containing 5.32 grammes of cocaine (“E1”);

(b)  A HK$100 banknote folded into a packet containing 0.07 gramme of a solid containing cocaine (“E2”); and

(c)  9 plastic bags containing a total of 4.91 grammes of a solid containing 4.23 grammes of ketamine (“E3”).

3.The defendant was arrested and cautioned. The defendant made no reply under caution.

4.HK$14,640 was found on the defendant and

5.The estimated street value of E1-E3 was HK$6,749.

6.A video-recorded interview was later conducted, the defendant stated the followings:

(a)  He dated the male for joyriding and they went out at about 11 pm on 4 July 2022 to 12 am on 5 July 2022;

(b)  They had been to Tseung Kwan O;

(c)  The drug seized belonged to him which he had bought at 6-7 pm on 5 July 2022 in Sham Shui Po;

(d)  He had placed the drug inside the car 1-2 hours before the joyriding for self-consumption and the male did not know about the drug; and

(e)  The money seized from him was money earned from gambling.

7.At the material time, the defendant had in his possession E1-E3 for the purpose of unlawful trafficking.

Mitigation and Sentence

8.The defendant is now 23 years old, single, living with his parents in a public housing. Father is 68 years old, a retired chef, mother is 53 years old, a housewife. He was educated up to secondary one in Hong Kong.

9.Before the present remand, he worked in a garage earning about HK$30,000 per month.

10.The defendant has two previous convictions, one was trafficking in dangerous drugs, the other one was possession of dangerous drugs. He had been sentenced to Training Centre and Drug Addiction Treatment Centre before, Counsel stressed, after his last release in 2017, he had been in gainful employment since.

11.Turning to the drugs in question, the sentencing guidelines are very clear. For trafficking in cocaine, up to 10 grammes, 2 to 5 years.[1] For trafficking in ketamine, 1 to 10 grammes, 2 to 4 years.[2] As submitted by the Defence Counsel, these guidelines are applicable to courier or storekeeper.[3]

12.I accept the defendant falls within the courier category. Thus I shall proceed on this basis.

13.On pure mathematical calculation, 5.32 grammes of cocaine will attract 43.15 months’ imprisonment, for 4.23 grammes of ketamine, it will attract 32.59 months’ imprisonment. By adopting the individual approach, the aggregated starting point would be 75 months, whereas assuming all the drugs were cocaine, being more heavier in terms of sentence, it will only attract a total of 58.4 months’ imprisonment for 9.55 grammes. Therefore individual approach will be unfair to the defendant.

14.I will adopt the combined approach, cocaine being more potent and larger in quantity. I will adopt 43 months as the base of my sentence consideration, in order to reflect another 4.23 grammes of ketamine, I shall increase it by 8 months, making it a total of 51 months’ imprisonment as the starting point and it has been quite rightly pointed out by Counsel, this case involves two types of drug which is an aggravating factor, [Quote “Because in such a situation the trafficker is able to cater for a far wider market than the trafficker in only one kind of drug.[4]”]

15.Besides, the defendant has two previous records, one related to trafficking in dangerous drugs. All matters considered, I will increase the starting by 3 months, making it a total of 54 months.

16.One last matter, Defence Counsel agreed only a proportion of the drugs were for self-consumption. Not relying on all or significant amount are for self-consumption as mitigation. It has been accepted by the prosecution, he is a drug addict, and he was tested positive both in cocaine and ketamine while being detained.

17.I accept part of the drugs were for self-use and exercise my discretion to lower the starting point by 3 months to reflect the self-consumption ground.

18.The final starting point would be 51 months’ imprisonment. He is entitled to 1/3 discount. The defendant is therefore sentenced to 34 months’ imprisonment.