HKSAR v. Lau Tin Yau and Others

DCCC 329/2023

[2024] HKDC 890

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 329 OF 2023

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REASONS FOR SENTENCE

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1.D1-D3 pleaded guilty to a joint charge of trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134 (Charge 1).

2.D1 also pleaded guilty to one charge of driving without a valid driving licence contrary to section 42(1)  and (4)  of the Road Traffic Ordinance, Cap 374 (Charge 2)  and one charge of using a motor vehicle without third party insurance, contrary to section 4(1)  and (2)(a)  of the Motor Vehicles Insurance (Third Party Risks)  Ordinance, Cap 272 (Charge 3).

SUMMARY OF FACTS

3.At about 3:47 am on 11 July 2022, WPC 25220 (“PW1”)  and police officers were on vehicle patrol in the Yuen Long area when PW1 spotted a private vehicle bearing registration number “XZ6194” (“the Vehicle”)  parked outside Marbella Gardens, No 25 Sha Tseng Road, Yuen Long, New Territories.  At the material time, D1, who was aged 17 at the time, was fixing the offside front tyre of the Vehicle while D2 and D3 were standing behind D1.  At the same time, D1, D2 and D3 were all looking around furtively.

4.PW1 and police officers therefore intercepted D1, D2 and D3.  Upon initial enquiry, D1 stated that the tyre was broken and he helped replace it. D1 further stated that there were dangerous drugs in the Vehicle and he only drove it to repay a debt owed to D2.

5.Upon body search on D2, 2 mobile phones and a car key of the Vehicle were found on D2.  Upon enquiry, D2 stated that D1 drove the Vehicle for distribution of dangerous drugs while D3 collected payment.

6.Upon body search, cash of HK$12,348 was found in a shoulder bag carried by D3.  Upon enquiry, D3 stated that D2 asked him to collect payment.

7.Police therefore conducted a search on the Vehicle, the following items were found inside a storage compartment at the central armrest of the Vehicle:-

(a)  One plastic bag containing 40 plastic bags containing a total of 13.66 grammes of a solid containing 10.73 grammes of ketamine (“E1”);

(b)  One plastic bag containing 10 plastic bags containing a total of 1.52 grammes of a solid containing 1.37 grammes of cocaine (“E2”); and

(c)  One plastic bag containing 10 plastic bags containing a total of 1.46 grammes of a solid containing 1.36 grammes of cocaine (“E3”).

Arrest and cautioned statements

8.D1 was arrested at the scene for “Trafficking in dangerous drugs”. Under verbal caution, D1 stated that D2 asked him to drive the Vehicle for distribution of dangerous drugs.  D1 was further cautioned for “Driving without a valid driving licence” and “Using a vehicle without third party risk insurance”.  He admitted that he drove without a licence and that he did not purchase any third party risk insurance.

9.D2 and D3 were also arrested at the scene for “Trafficking in dangerous drugs”.  Under verbal caution:-

(a)  D2 stated that the dangerous drugs belonged to him and that he had asked D1 and D3 to drive the Vehicle and collect payment; and

(b)  D3 stated that he was only responsible for collecting payment while D1 and D2 were responsible for driving the Vehicle and distributing the dangerous drugs.

Further search on the Vehicle

10.A further search with the assistance of the Police Dog Unit was conducted in respect of the Vehicle at the car park of Yuen Long Police Station, where the Vehicle was towed to.  In the presence of D1, D2 and D3, one plastic bag containing 0.33 grammes of a solid containing 0.27 grammes of ketamine (“E4”)  was found under the gearshift of the Vehicle.

11.When verbally cautioned for E4, D2 stated that E4 belonged to him.

Cautioned statements under VRI

12.D1 was subsequently interviewed under VRI.  Under reminded caution, D1 made, inter alia, the following statements:-

(a)  He owed D2 some HK$20,000 from gambling. D2 asked him to repay the debt by driving a vehicle. HK$2,000 would be deducted for each day of driving;

(b)  D2 told him to drive the Vehicle for the purposes of distribution of dangerous drugs;

(c)  He got on the Vehicle at about 10:00 pm on 10 July 2022 in Tuen Mun. He then went to Yuen Long and Tin Shui Wai with D2 and D3, who distributed dangerous drugs there;

(d)  This was his first time driving for D2. D2 had asked him to do it for 15 days from 8:00 pm to 5:00 the next day;

(e)  D2 drove the Vehicle initially and asked him to drive it about 2 hours later. He then started to drive from Tin Shui Wai; and

(f)  He did not have any driving licence and had not purchased any third party risk insurance.

13.D3 was subsequently interviewed under VRI.  Under reminded caution, D3 made, inter alia, the following statements:-

(a)  He was a personal trainer earning around HK$15,000 to HK$20,000 per month; and

(b)  He was not a drug user.

Police investigation

14.At all material times, according to the records of the Transport Department, D1 had not held any driving licence. 

15.At all material times, D1 was not covered by any valid third party risk insurance.

The offences

16.At all material times:-

(a)  D1, D2 and D3, unlawfully trafficked in dangerous drugs, namely, E1 to E4 (Charge 1);

(b)  D1 drove the Vehicle on a road when he was not the holder of a valid driving license in respect of a vehicle of the class of vehicle which he was driving (Charge 2);

(c)  D1 used the Vehicle on a road when there was not in force in relation to the use of the Vehicle by him such a policy of insurance or such a security in respect of third party risks as complied with the requirements of the Motor Vehicles Insurance (Third Party Risks)  Ordinance, Cap 272 (Charge 3).

Section 56A enhancement

17.An enhancement was sought under section 56A of the Dangerous Drugs Ordinance, Cap 134 by the prosecution against D2 and D3, as the commission of the offence involved a minor, D1.  The prosecution submitted that D2 and D3 intentionally or unintentionally employing, hiring, using, persuading, enticing, or coercing a minor, ie D1, in the commission of charge 1. 

CRIMINAL RECORD AND BACKGROUND OF D1

18.D1 has one criminal conviction record of taking conveyance without authority and was sentenced[1] to rehabilitation centre, a detention order which he is currently serving. 

19.D1 does not have a valid driving licence.  He has no traffic conviction record.

20.The defendant is now aged 19 and was 17 at the time of the offences.  He is single.  He lived with his mother (aged 37)  and step-father (aged 40)  in public housing.  He has no siblings.  He is educated to secondary 4 level in Hong Kong.  After leaving school, he was unable to secure any stable job.  He had been a garage worker for a week.

MITIGATION OF D1

21.In respect of charge 1, it was submitted by Mr Chan that there were no exceptional circumstances in this case, pre-sentence reports for D1 are not necessary (HKSAR v Chan Lok Him DCCC 125/2019,HKSAR v Luo Xuejian DCCC 131/2022 HKSAR v Wong Tsz Kin and another DCCC 302/2023).

22.It was submitted by Mr Chan that the “combined approach” to sentencing for trafficking a cocktail of dangerous drugs ought to be applied (HKSAR v Cheung Wai Man [2019] 1 HKLRD 817 at [46]), as opposed to the “individual approach” which would result in an excessive overall sentence ie 81 months’ imprisonment[2] in this case (HKSAR v Islam SM Majharul [2020] 3 HKLRD 146).  Regarding the 3 tests:

(a)  The absurdity test[3]: assuming the total quantity of drugs seized contained only ketamine (ie 13.73 g), it would, when applying the guideline for ketamine, attract a starting point of 49.9 months’ imprisonment. If, on the other hand, the total quantity of drugs seized contained only cocaine (13.73 g), it would, when applying the guideline for cocaine, attract a starting point of around 63 months’ imprisonment.

(b)  The conversion test: the quantity of 2.73 g of cocaine would attract a starting point of 33 months’ imprisonment applying the guideline for cocaine, and the same starting point according to the guideline for ketamine (the base drug)  would correspond to 4.5 g of ketamine; so by adding the converted quantity of 4.5 g of ketamine to the 11 g of ketamine seized, the total quantity would be 15.5 g, for which, according to the guideline for ketamine, would attract a starting point of 51.3 months’ imprisonment. On the other hand, if one were to convert the 11 g of ketamine to cocaine (= 6.8 g of cocaine), the total quantity would be 9.53 g of cocaine, for which, according to the guideline for cocaine, would attract a starting point of around 58 months’ imprisonment.

(c)  The ratio test: the ratio of ketamine is around 0.80 (11g/13.73 g)  and ratio of cocaine is around 0.20 (2.73 g/13.73 g); and so on the total quantity of 13.73 g, the starting point according to the guideline for ketamine is 49.9 months’ imprisonment, which when multiplied by the ratio 0.80 is 39.92 months’ imprisonment, and the starting point for 13.73g according to the guideline for cocaine is 63.4 months’ imprisonment, which when multiplied by the ratio of 0.20 is 12.68 months’ imprisonment, resulting in a total starting point of 52.6 months’ imprisonment (ie 39.92 months + 12.68 months).

23.The calculations of the above were agreed by the prosecution, D2 and D3.

24.In the present case, the quantity of ketamine is substantially higher, representing about 80% of the drugs seized (11/13.73), it was submitted that ketamine should be the base drug in the present case.  This is agreed by the Prosecution (HKSAR v Chan Lok Him).  If this is the case, the court should then increase the sentence to take into account the other drug, cocaine.  It was suggested that 3 months at most may appropriately be added on.

25.The court was invited to not make any enhancement though 2 kinds of drugs are involved in the present case.  It was submitted that the quantity of cocaine only accounted for about 20% of the drugs seized, with the principal drug being ketamine(HKSAR v Chan Lok Him).

26.The court is also invited not to make any enhancement for D1 jointly committed the offence with D2 and D3 given the D1 was a minor (aged 17)  at the time of the offence and the role of D1 was only a driver/courier (HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290).  In addition, D2 admitted that under caution all the drugs belonged to him. D1 committed the trafficking offence because by driving, he would be able to repay a substantial debt of HK$20,000 he owed to D2

27.In respect of charge 2, it was submitted that D1 only drove from about 0000 hours on 11 July 2022 from Tin Shu Wai, where D2 and D3 distributed drugs. The vehicle was found parked in Tuen Mun at about 0347 hours on 11 July 2022.  There is no evidence of the route D1 drove or the actual length of time that he drove.  Nor is there any evidence of D1’s manner of driving, and it is not clear that D1 would have continued to drive after being arrested.  By referring to HKSAR v Tse Chi Hong [2019] HKDC 284, Mr Chan invited the court to impose a short custodial sentence.

28.In respect of charge 3, there were no personal injury or property damage caused by D1’s driving.  The court is asked to impose a short custodial sentence and a minimum period of 12 months for the disqualification.

29.Finally, Mr Chan asked the sentence for all the charges to run concurrently (HKSAR v Tse Chi Hong DCCC 527/2018).

CRIMINAL RECORD AND BACKGROUND OF D2

30.D2 has a clear record.

31.D2 is now 24 years of age and was 22 at the time of offence.  D2 was educated up to Form 3.  His father is 48 years old and his mother is 39.  D2 also has 2 sisters who are 14 and 8.  D2 previously worked as a vehicle repairman at a salary of HK$15,000 per month but has been unemployed since July 2021.

MITIGATION OF D2

32.It was submitted by Mr Kwong that six-step approach to sentencing for offences of trafficking in dangerous drugs should be considered (HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290).

33.As multiple drugs were trafficked in this case, the appropriate sentence was to be determined after cross-checking the sentencing outcome of the 3 tests. After cross-checking, the arithmetic starting point should be around 4 years and 3 months to 4 years and 5 months.

34.Regarding the enhancement under section 56A, Cap 134, it is not disputed that the enhancement applies to D2.  D1 was marginally below the age of an adult and there is no evidence that D2 had knowledge of D1’s age.  It was submitted that the involvement of a minor was unintentional, the appropriate enhancement should be between 6-15% in the present case and the enhancement should be done before the reduction for guilty plea, which is accepted by the Prosecution (HKSAR v Ng Hon Keung [2012] 1 HKLRD 1017, HKSAR v Chan Ka Shing[2012] 2 HKLRD 220, HKSAR v Wong Chun Hin[2019] 1 HKLRD 433, 香港特別行政區 訴 何耀滔DCCC1061/2022 [2023] HKDC 1167, HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186).

35.This is a case of joint enterprise.  It is submitted by Mr Kwong that it is an aggravating factor.

36.Mitigation letters of D2 and D2’s grandmother were submitted and a lenient sentence was asked for. 

CRIMINAL RECORD AND BACKGROUND OF D3

37.D3 has a clear record.

38.D3 is now 26 years of age and was 24 at the time of offence.  He is single.  D3 was educated up to Form 6 and lived with his parents.  His father (aged 55)  is a barber.  His mother (aged 55)  worked in a school tuck shop, but she just quit her job since she has suffered cancer.  After graduation, D3 worked as a freelance personal trainer, earning about $15,000 – $20,000 a month.  D3 was an athlete of Hong Kong.  At the time of the offence, he was unemployed owing to COVID-19 pandemic.

39.It was submitted that D3 knew D2 when they were at school.  Upon D2’s request, D3 agreed to assist D2 to commit the offence.  D3 did not know D1; he only met D1 for the first time on the date of offence.

MITIGATION OF D3

40.It was submitted by Mr Chong that a combined approach was to be considered in this case.

41.Regarding the enhancement under section 56A, Cap 134, it is not disputed that the enhancement applies to D3.  It was submitted that the enhancement must be proportionate to the sentence for the basic offence and must be reasonable (HKSAR v Chan Ka Shing [2012] 2 HKLRD 220, HKSAR v Ng Hon Keung [2012] 1 HKLRD 1017 and HKSAR v Har Tsz Yui [2020] 1 HKLRD 307)

SENTENCE

Charge 1 – Trafficking in dangerous drugs (D1-D3)

42.The dangerous drugs involved in this case were 2.73 grammes of cocaine and 11 grammes of ketamine. 

43.The tariff guideline for trafficking in cocaine is set out in AG v Pedro Nel Rojas [1994] 2 HKCLR 69 and R v Lau Tak Ming & Others[1990] 2 HKLR 370.  As for ketamine, the guidelines is laid down in SJ v Hii Siew Cheng [2009] 1 HKLRD 1.

44.In determining the overall starting point, I have reminded myself of the sentencing principles in HKSAR v Chan Yuk Leong CACC 318/2013 where cocktail drugs are involved.  In the present case, if the individual approach is adopted, I find that the starting point would be 79 months’ imprisonment[4], which is too excessive.  I agreed that a “combined approach” is to be preferred.  The court has to apply three tests to cross checking so as to ensure the overall sentence to be within range.  I adopted the calculation made by D1 of the respective three tests and it was agreed by D2-D3 and the prosecution. 

45.In terms of potency, in HKSAR v Ko Ka Hing [2009] 4 HKLRD 856:

“(3)  Where the “combined approach” is taken, the court will rely on common sense in determining which type of the dangerous drugs is to be regarded as the more serious, hence forming the basis of the starting point. For example, a certain type of drug, although less potent, may be present in much larger quantity than another, in which case its quantity will form the basis for the starting point. On the other hand, if the two types of drugs are present in similar quantities, the quantity of the drug of greater potency will provide the basis for the starting point.”

46.Although cocaine is more potent than ketamine, the ketamine found in this case is in a significantly larger quantity.  I found that ketamine should form the basis of the starting point.

47.Under the absurdity test, the starting point would be 50 months’ imprisonment.

48.Under the conversion test, the starting point would be 51 months’ imprisonment.

49.Under the ratio test, the starting point would be 52.6 months’ imprisonment.

50.I have also considered the methodology under the combined approach as laid out in HKSAR v Islam S M Majharul [2020] 3 HKLRD 146 and Herry Jane Yusuph [2021] 1 HKLRD 290.

51.For charge 1, I adopt a notional starting point of 51 months’ imprisonment.

52.D1, D2 and D3 were acting in joint enterprise and they should bear the same responsibility.  It is an aggravating factor.  I enhance the sentence by 2 months.  I have also considered the aggravating factor that the trafficking involved more than one dangerous drug (HKSAR v Chan Yuk Leong (陳旭亮) CACC 318/2013 para 23).  I further enhance the sentence by 2 months.  As such, the starting point would be 55 months’ imprisonment.

D1

53.D1 is now aged 19 years old.  He was 17 at the time of the offences.  I have borne in mind the legal principles in sentencing young offenders under the age of 21.  I am aware that the restriction on imprisonment of young persons under section 109A of the Criminal Procedure Ordinance, Cap 221.  Regards must be given in the consideration of rehabilitation and reformation of the young offender.  Seriousness of the offences must also be given sufficient consideration.  In the present case, the offence of charge 1 which D1 pleaded guilty to, is an excepted offence.  As such, pursuant to section 109A (1A), section 109A(1)  does not apply.

54.I find that an immediate custodial sentence is the appropriate sentence for D1 for charge 1.(Secretary for Justice v Chau Tsz Tim (周梓添)  [2015] 1 HKLRD 853 and HKSAR v Wong Ka Chun (王家駿) [2016] 4 HKC 424)

55.For charge 1, the starting point for D1 is 55 months’ imprisonment, after one third discount for the guilty plea, the sentence is 36 months’ imprisonment.

D2 and D3

56.It was not disputed that the enhancement under section 56A applies to D2 and D3. Section 56A provides:

“(1)  Subject to subsection (5), where a person (other than a minor)  has been convicted of a specified offence and—

(a)  a court is satisfied beyond reasonable doubt as to any information furnished under subsection (2); or

(b)  any such information is agreed by the person,

then the court—

(i)  shall have regard to such information when it passes a sentence on the person for the offence; and

(ii)  may, if it thinks fit, pass a sentence on the person for that offence that is more severe than the sentence it would, in the absence of such information, have passed.

(2)  Information which may be furnished to a court under this subsection is any information which proves that the commission of the relevant specified offence involved a minor and, without limiting the generality of the foregoing, the information may relate to any of the following—

…

(d)  a person intentionally or unintentionally employing, hiring, using, persuading, enticing, or coercing a minor in the commission of a specified offence or the avoidance of detection or apprehension of such an offence;

(3)  Only information that would be admissible in evidence in criminal proceedings (including proceedings in respect of sentencing)  may be furnished to the court under subsection (2).

(4)  Where the prosecution seeks to furnish information to a court under subsection (2), the court shall allow the person convicted of the relevant specified offence an opportunity to—

(a)  object to the reception of the information; and

(b)  where such information is received by the court, furnish other information regarding that first-mentioned information.

(5)  A sentence passed pursuant to subsection (1)  shall not exceed the maximum penalty permitted by law for the relevant specified offence.

…

specified offence (指明罪行)  means any offence under section 4, 4A, 5, 6, 8, 9, 35, 36 or 37.”

57.The minor involved is D1, aged 17 at the time of the offence.  “Minor” is not defined in the Dangerous Drugs Ordinance. Under the Interpretation and General Clauses Ordinance, Cap 1, infant and minor mean a person who has not attained the age of 18 years.  At the time of the offence, D1 was 17, D2 was 22 and D3 was 24.

58.It was submitted by Mr Kwong that D2 did not know the actual age of D1.  Mr Chong, on behalf of D3, submitted that as D3 only first met D1 on date of the offence, D3 did not know the age of D1, D3’s act was therefore unintentional.  D3 asked for a lower degree of enhancement.  In Wong Chun Hin (王俊軒)  CACC 381/2016:

“11. This Court should first point out that use of a minor in drug trafficking is an extremely evil act for the reason that it would result in the conviction, long-term imprisonment and loss of future prospects of the mentally immature minor who is being used. A robust approach must be taken against such an evil act to protect minors from being harmed.

12. In considering the range of enhancement, the court is required to take account of the particular circumstances of the individual case. The factual background relating to the enhancement of sentence in respect of this factor can vary to a great extent, and therefore it is not appropriate for the court to give explicit guidelines for the levels of enhancement. As a drug trafficking offence itself is going to result in an extremely long sentence, restraint should be exercised on the range of enhancement arising from other aggravating factors in order to avoid an overly severe sentence.

14. …We reiterate that in Chan Ka Shing the Court of Appeal has stated as follows:

“Drug trafficking is of course a very serious offence; no offender should get off lightly. Using a minor in drug trafficking is even more heinous. Anyone would find the crime of drug trafficking abominable; however, when passing or enhancing the sentence, the court has still to exercise restraint to avoid increasing the sentence without limit, thus causing confusion and unfairness.”

59.I have considered the age difference of the defendants and the role of the defendants.

60.In Chan Ka Shing (陳嘉成) CACC 64/2011:

“25 When enhancing the sentence pursuant to section 56A(2)  of the Dangerous Drug Ordinance, the court has to consider not only the percentage of the enhancement, but also the actual extent of enhancement.”

61.Having considered the relevant authorities and all the circumstances of the case, I enhance the sentence by 5 months (ie approximately 9%)  for D2 and D3 due to their using a minor in drug trafficking.  As such, for charge 1, the starting point for D2 and D3 is 60 months’ imprisonment, after one third discount for the guilty plea, the sentence is 40 months’ imprisonment.

Charge 2 - Driving without a valid driving licence (D1)

62.The maximum sentence for driving without a valid driving licence, for the first conviction, is a fine of $5,000 and imprisonment for 3 months.

63.At the time of the offence, D1 did not hold any driving licence. D1 was therefore fully aware that he was driving without a valid driving licence.

64.For charge 2, I take a starting point of 1.5 months’ imprisonment, after one third discount for the guilty plea, the sentence is 1 month’s imprisonment.

Charge 3 - Using a motor vehicle without third party insurance (D1)

65.The maximum sentence for the offence of using a motor vehicle without third party insurance is a fine of $10,000 and imprisonment for 12 months.

66.In HKSAR v Wong Chi Ming (HCMA 510/1999; unreported, 13 August 1999, at page 5)  it was held that the seriousness of the offence of using a motor vehicle without third party insurance “…lies in the possibility of the victims in traffic accidents may be left without any compensation”.

67.In the present case, fortunately there were no injury or damage.

68.For charge 3, I take a starting point of 3 months’ imprisonment, after a one third discount for a guilty plea to this offence, the sentence is 2 months’ imprisonment.

Disqualification

69.There is a mandatory disqualification of not less than 12 months nor more than 3 years, unless the court for special reasons orders that the person be disqualified for a shorter period or that the person not be disqualified.

70.I do not see there is any special reason not to disqualify D1.  Having considered the facts of the case, I order that, for charge 3, D1 be disqualified from driving all classes of vehicles for a period of 12 months.

TOTALITY (D1)

71.For charges 2 to 3, which are all traffic related, I order all sentences to be served concurrently.  However, I find that charge 1 and charges 2-3 are distinct in nature.  Nevertheless, bearing in mind the principle of totality, I order that 1 month of the sentence of charges 2-3 to run consecutively to the sentence of charge 1 and the balance be served concurrently.

72.There is no other mitigating factor which justifies a further reduction of sentence for D1-D3.

CONCLUSION

73.The sentence for D1 is 37 months’ imprisonment and disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 12 months.

74.Pursuant to section 8 of the Rehabilitation Centres Ordinance Cap 567, as D1 is sentenced to a term of imprisonment in the present case, the rehabilitation order which D1 is now serving shall lapse.

75.The sentence for D2 is 40 months’ imprisonment.

76.The sentence for D3 is 40 months’ imprisonment.