HKSAR v. Lui Yat Fung

DCCC258/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 258 OF 2009

----------------------

----------------------

Reasons for Sentence

1.The defendant pleaded guilty to one charge of trafficking in dangerous drugs.

2.In sentencing I take into account the whole circumstances of the case including its nature and facts, in particular, the nature and quantity of the dangerous drugs involved, background of the defendant, and Mitigation put forward on his behalf by learned defence counsel. 

3.The facts of the case are simple.  The defendant was stopped on the street.  He was found in possession of 14.38 grammes of a powder containing 3.17 grammes of Ketamine and 6.87 grammes of a solid containing 5.59 grammes of Cocaine. 

4.Under caution he admitted he was delivering dangerous drugs to another person for a reward of $1,000. 

5.The defendant is going to be 23 years of age in a few days.  He is not a first offender.  He was on, 24 July 2003, convicted of the offences of possession for the purpose of trade or business of infringing copies of copyright works with a view of committing and infringing the copyright without a licence of a copyright owner, obstruction of public place and hawking without a licence.  All these offences arose from the same incident and for them he was put on probation for 18 months.

6.Those offences were committed 5 years ago when the defendant was around 17 years of age.  I was told that at that time he was studying Form 3.  He stopped education as a result of the convictions and his lack of interest in studies.  When he was studying in primary school he was a good student.  Things turned bad when he was promoted to secondary school and he was under adverse inference of bad peers.  The latter was one of the reasons for his committing the said offences. 

7.Since the last conviction I was told that defendant tried hard to turn over a new leaf.  He had been in gainful employment as a waiter, a driver and a finance agent at different times.  Unfortunately his mother suffered from cancer and has not been working since 2003.  His father has also lost his full time employment and has only been engaged in odd jobs.  Since they own an old property they were not entitled to CSSA.

8.The defendant married in September last year his girlfriend who was then pregnant.  Under the stress of financial pressure and also because the defendant is a drug addict, he committed the present offence in order to earn more.  A very foolish act indeed.  He is now facing a penalty and not only he himself, his family and, in particular, his wife and their newborn baby will also suffer.  This result is, however, what the defendant should have taken into account before he embarked on this serious criminal act.  This is strictly not a mitigating factor.

9.In mitigation, learned defence counsel told the court that the defendant was remorseful and that he had the full support of the family.  I have no reason not to accept this. 

10.In all the circumstances, having regard to the precedents, I am of the view that an immediate custodial term is warranted.  Although I was told that the defendant is a drug addict, in view of the imprisonment term I have in mind, I do not consider it necessary to consider DATC treatment.  There are sufficient facilities and mechanisms for CSD to assist the defendant to get rid of the addiction when he is serving the imprisonment term.

11.The offence was committed on 29 December 2008, the case of S.J. v Hii Siew Cheng [2009] 1 HKLRD1 is applicable as far as trafficking in the dangerous drug of Ketamine is concerned.  As regard trafficking of Cocaine, it was held in the case of A.G. v Chang Chen Liu Sa [1995] on HKCLR 69, that the sentencing tariff as set out in the case of R v Lau Tak-ming [1992] HKLR 370 was applicable.

12.The defendant was trafficking in two types of dangerous drugs, namely, Ketamine and Cocaine.  In consideration I have had regard to the cases submitted by learned counsel and the case of HKSAR v Cheng Yat-ming CACC 455 [2006].

13.Taking into account that two kinds of dangerous drugs were being trafficked which is an aggravating factor; the defendant was aware that he was doing this; the quantity of the two dangerous drugs; this is the first time the defendant is convicted of a dangerous drug related offence; he was only a courier, not mastermind, I am of the view that a starting point of 3 years is appropriate.  The defendant pleaded guilty, he is entitled to a one third discount.

14.Having considered the whole circumstances including mitigation, I am of the view that this is the extent of discount the defendant is entitled to.  Based on the matters aforesaid, I sentence the defendant to 2 years’ imprisonment for this charge.