HKSAR v. Lau Fei

DCCC827/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 827 OF 2009

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Before:   Deputy District Judge Johnny Chan

Date: 1 September 2009 at 11.47 am

Offence:  Trafficking in a dangerous drug   (販運危險藥物)

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Reasons for Sentence

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1. The defendant, Lau Fei, pleads guilty before me to one count of trafficking in a dangerous drug.  The defendant admits that on 22 May 2009, outside No. 3, Cannon Street, Causeway Bay, in Hong Kong, he unlawfully trafficked in a dangerous drug, namely, 149.88 grammes of a powder containing 103.77 grammes of ketamine.

2. At 9.34 pm on 22 May 2009, PC1618 (PW1) and PC3035 (PW2) were patrolling outside No. 3, Cannon Street, Causeway Bay when they noticed the defendant alighting from a taxi and talking on his phone.  PW2 overheard the defendant saying, “The stock is with me.  Don’t chase me.  I am sending it to you now.  Tell me one more time where you are.”  The defendant was holding a black plastic bag at the time.

3. Feeling suspicious, PW1 and 2 intercepted the defendant for a search.  Inside the black plastic bag that the defendant was holding, there were three resealable plastic bags containing suspected dangerous drugs, nine empty resealable plastic bags, seven SIM cards and two mobile phones.  The defendant was arrested and cautioned by PW1.  However, the defendant said nothing under caution.

4. The three resealable plastic bags seized from the defendant were examined by the government chemist who found it to contain a total of 149.88 grammes of a powder containing 103.77 grammes of ketamine.

5. The defendant admits at the material time he trafficked in ketamine.

6. The defendant has two items of conviction recorded against him.  In 2006, the defendant was convicted of assault occasioning actual bodily harm and was placed under probation supervision for 12 months.  In 2008, the defendant was convicted of behaving in a disorderly or noisy manner in a public place, and he was sentenced to 100 hours’ community service order. 

7. The antecedent statement of the defendant shows that the defendant is now 20 years old.  He completed Form 3 education in 2008.  Mr Lee for the defendant tells me today that in fact the defendant completed his Form 3 education in 2006.  After he finished his Form 3 education at the secondary school as stated in the statement, he continued his studies and he finished Form 5 at other institutes.  The defendant has worked as a waiter in various restaurants after leaving school.  The defendant does not suffer from any particular illness.  The defendant lives with his mother and his younger half-brother at a public housing unit in Ho Man Tin. 

8. Mr Lee tells me in mitigation that the defendant arrived in Hong Kong in 1999 with his mother from the mainland.  The defendant came from a single-parent family.  He is now only 20 years old and is a very young man.  At the time of the offence, the defendant was unemployed.  He worked as a waiter formerly and his previous employment did not last long, however.  Though the defendant has two previous convictions but they were not of similar nature.  The defendant pleads guilty to the charge and he admits he was acting as a courier.  He was promised $1,000 for dealing with the dangerous drugs.  He was asked to deliver the drugs from Mongkok to Causeway Bay.  He was intercepted by the police with the drugs found on him.  He was arrested and charged with the offence, and he pleaded guilty at the first available opportunity.

9. Mr Lee submits the defendant played only the role of a courier.  Admittedly, he played an important but not the most important role.  Mr Lee submits the defendant is of young age and is now very remorseful.  He pleads guilty to the charge and asks the court to be lenient.  Mr Lee submits according to the tariff as set down by the Court of Appeal in Hii Siew Cheng, Application for Review No. 7 of 2006, for trafficking in ketamine between 50 to 300 grammes, the tariff should be 6 to 9 years.  Mr Lee urges me to take the lowest starting point of 6 years.

10. In sentencing the defendant, I have borne in mind the facts of this case, the nature of the drugs and the quantity of the drugs involved.  I have borne in mind the tariffs as set down by the Court of Appeal in Hii Siew Cheng and all the matters urged on the defendant’s behalf by Mr Lee today.

11. In my judgment, if one is to follow the tariff of Hii Siew Cheng strictly, a starting point of 6 years and 8 months would have been appropriate given the quantity of the ketamine involved in this case.  I am aware that the defendant is only 20 years old.  He is not of extreme youth, and I am also aware that it is dangerous to pass an unduly lenient sentence on a young offender.  Otherwise, a very wrong message would be sent out to the public and in particular to the traffickers that young offenders who engage themselves in drug trafficking activities would get very lenient sentence from the court.

12. Bearing in mind the young age of the defendant, in my judgment, the end of justice can be met if I am to take a starting point of 6 years and 3 months in this case.  I would allow the defendant one-third reduction for his guilty plea and reduce the sentence to 4 years and 2 months. 

13. The fact that the defendant was only acting as a courier does not, in my judgment, amount to a mitigating factor.  If the defendant were the mastermind, the defendant would get a heavier sentence.  Apart from the guilty plea and the relative young age of the defendant, I can see no other mitigating factors to further reduce the sentence.  For the reasons given, I sentence the defendant to 4 years and 2 months’ imprisonment.