HKSAR v. Lau Chun Kit

DCCC381/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 381 OF 2009

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Reasons for Sentence

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1.The defendant is charged with one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134, and one charge of failing to surrender to custody without reasonable cause, contrary to section 9L(1) and (3) of the Criminal Procedure Ordinance, Cap.221.

2.The defendant pleaded guilty and admitted the facts. He was convicted accordingly.

The Facts

3.On 1 December 2008 the defendant was intercepted by police in Tai Wo Hau area and he was in possession of a packet with 26.83 grammes of powder containing 22.06 grammes of ketamine.

4.At the material time, the defendant unlawfully trafficked in the said dangerous drugs, Charge 1. On 19 August 2009, being a person admitted to bail, the defendant, without reasonable cause failed to surrender to custody as appointed by the court. He was rearrested on 9 April 2010, Charge 2.

5.The defendant aged 23, was brought up by his uncle and aunt. He is single with no stable job. He has four previous convictions, no similar. He has been sentenced to serve Probations Order, Detention Centre Order and Training Centre Order, yet he did not learn any lesson out of that, and this suggested the defendant has a weak law-abiding sense. He was last sentenced to DATC on 27 May 2010 for claiming MOTS.

6.To have more information about the background of the defendant, I called for a copy of the DATC report obtained for his last conviction. It transpired from the report that the defendant affiliated with triad-related members and the defendant committed the last convicted offence while he was on bail for the present offence.

7.The defence in mitigation submitted that the defendant made frank admissions and was remorse for what he did. He was a drug addict. He intended to consume a small portion of the drug concerned and sell the rest out. He committed the second charge because he was afraid.

8.Under the old ecstasy guideline in Lee Tak Kwan, which was applicable to ketamine, for quantities up to 25 grammes, the sentencing band is 2 years. However, the tariff for ketamine and ecstasy was increased substantially on 6 June 2008 by the Court of Appeal.

9.The defendant committed the present crime on 1 December 2008. The new tariff is applicable to the defendant for quantities between 10 to 50 grammes are 4 to 6 years’ imprisonment.

10.The defendant was granted bail pending his trial on 19 August 2009. When the defendant determined not to surrender to the custody, he must have been realised that once he was convicted he would be sentenced to an immediate term of imprisonment, subject to a new tariff.

11.The defendant succeeded in avoiding the execution of the warrant for his arrest that was issued following his failure to surrender to custody for trial until he was rearrested on 9 April 2010. That is for a period of about eight months.

12.I refer to the tariff in Secretary for Justice v Hii Siew Cheng, CAAR 7/2006. I consider the appropriate starting point of sentence for Charge 1 is 4½ years. I note the maximum sentence of imprisonment that may be imposed for the offence under section 9L(1) and (3) of the Criminal Procedure Ordinance is 12 months’ imprisonment.

13.I consider the appropriate starting point for Charge 2 to be 3 months, and the bail monies to be forfeited in full.

14.The defendant is entitled to one-third discount for his plea. I do not consider there to be any mitigating factors call for further deduction.

15.The two charges concern two separate incidents and the sentences should run consecutive with each other, making a total of 38 months’ imprisonment.

Order

16.Charge 1, sentenced to 36 months' imprisonment, and Charge 2, sentenced to 2 months' imprisonment and the bail monies of $2,500 is to be forfeited. The sentence is to run consecutive with Charge 1, making a total of 38 months’ imprisonment.