HKSAR v. Yau Wai Yi
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HCCC309/2008 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CRIMINAL CASE NO. 309 OF 2008 ----------------------
---------------------- Before: The Honourable Mr Justice Saw Date: 20 February 2009 at 9.53 am
Offence: Trafficking in a dangerous drug (販運危險藥物)
COURT: The defendant Yau Wai-yi was born on 25 May 1974, and he is now aged 34 years. He is a man with no criminal record to date. On 19 December 2008 he appeared before Mr W Lam Magistrate at the Eastern Magistracy. He was there charged with one offence of trafficking in dangerous drugs, contrary to section 4(1A) and (3) of the Dangerous Drugs Ordinance. The particulars of the charge allege that the defendant trafficked in 501.31 grammes of a powder containing 396.14 grammes of ketamine. It was alleged in those particulars that the trafficking in that quantity of ketamine had taken place at the Tung Kok Children’s Playground at Fanling in the New Territories, and it was the final particular of the charge that the offence took place on 30 July 2008. Returning to 19 December 2008. On that date the defendant pleaded guilty to this charge. A summary of facts which had been submitted by the prosecutor in support of the charge was read in open court and was admitted by the defendant. Throughout the proceedings before the magistrate the defendant was represented by Legal Aid counsel. Subsequent to the defendant’s plea of guilty and he having admitted the summary of facts, the magistrate committed him to this court for sentence. Today, before me, the defendant has confirmed his plea of guilty and admitted the accuracy of the summary of facts. He is therefore found guilty of the offence charged. The summary of facts reveal that at about 9.25 pm on 13 July last the defendant was observed by two police officers in the vicinity of the children’s playground. He was seen to be wheeling a bicycle and carrying a paper bag. The police officers intercepted the defendant and examined the contents of the paper bag. Inside they found two resealable transparent plastic bags, and inside those bags was a substance which the police officers suspected to be dangerous drugs, and in particular ketamine. The police officer’s suspicions proved to be correct, and a subsequent analysis revealed that the two plastic bags contained 501.51 grammes of a powder containing 396.14 grammes of ketamine. In addition to the dangerous drugs the defendant was also found to be in possession of a quantity of resealable plastic bags and an electronic scale. The defendant told the police officers that he had been requested by his friend Ah Bee to deliver the ketamine for him, and he was to be paid $1,000 for that. The ketamine had a retail value of $66,199. Mr Wong, on behalf of the applicant today, tells me something of his background. He confirms that he, up until today, was a person of unblemished record. Whilst not formally married, he has an association with a lady, and of that association there are two children. Unfortunately one of those children has difficulties, and for that reason is required to reside in a boarding house environment, and the other child is in the care of the Social Welfare Department. Mr Wong also tells me that the lady with whom the defendant cohabits has herself suffered from post-natal depression subsequent to the birth of their second child. The defendant, it appears, is only employed on a part-time basis, and is also in receipt of CSSA payments. I am told by Mr Wong that at the time of the offence he was in need of money to enable he and his cohabitee to move in to government accommodation. It is for this reason, I am told, that he succumbed to temptation and accepted Ah Bee’s offer to traffic in these drugs. For these reasons Mr Wong invites me to impose upon the defendant a sentence at the lower end of the recommended bands which the Court of Appeal has recently pronounced. In regard to the recent recommendations this offence was committed, as I earlier indicated, on 30 July 2008. On 6 June of that year the Court of Appeal laid down new guidelines for sentencing for those who traffic in Ecstacy and ketamine. Mr Wong accepts on behalf of the defendant that he is caught by those new guidelines. The guidelines recommended by the Court of Appeal for trafficking in a quantity of ketamine or Ecstacy in the amount that this defendant had recommend a sentence after trial of 10 years’ imprisonment. The quantity of ketamine the defendant trafficked in puts him in band 5 of the recommended bands, which, for the avoidance of doubt, says that for 300 to 600 grammes of ketamine or Ecstacy a court should, in the normal course of events, sentence a defendant to 9 to 12 years after trial. If I was to adopt 10 years as the starting point for sentence after trial, allowing a full one-third discount for the defendant’s plea of guilty, a sentence of 6 years and 8 months’ imprisonment would be appropriate. Mr Wong, on behalf of the applicant, urges me not to adopt that course and to impose a sentence at the lower end of the bracket of the range of 9 to 12 years. He urges me to do this because of the personal circumstances of the defendant, to which I have earlier referred. I cannot accede to that suggestion. None of the matters that had been advanced on behalf of the defendant would permit me, in my opinion, to not apply the recommendations of the Court of Appeal. There is no warrant for me to apply a starting point of 9 years’ imprisonment, which is appropriate for trafficking in 300 grammes of ketamine. In the circumstances, adopting the 10-year starting point for sentence and giving to this defendant a full discount for his plea of guilty and mitigation, I therefore impose a sentence of 6 years and 8 months’ imprisonment. |