HKSAR v. Lau Ka Lok
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DCCC320/2010 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO.320 OF 2010 ---------------------------
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Reasons for Sentence 1.The defendant pleaded guilty to 2 charges of trafficking in dangerous drugs, admitted to the summary of facts and was duly convicted. Charge 1 2.It is alleged that the defendant on 4th February 2010, outside shop A, no.66 Heung Wo Street, Tsuen Wan, New Territories, unlawfully trafficked in a dangerous drugs, namely 9.58g of a powder containing 7.8g of Ketamine. Charge 2 3.It is alleged that the defendant on the same day as charge 1, at Room 2, flat B, 6th floor, Heung Wo Building, nos.66-78 Heung Wo Street, Tsuen Wan, New Territories, unlawfully trafficked in a dangerous drugs, namely 23.53g of a powder containing 17.79g of Ketamine. Summary of facts 4.The defendant was stopped and searched by 2 police officers while walking on the street outside shop A of no.66 Heung Wo Street. One plastic bag with 6 small packet inside was found inside the underpants of the defendant. When asked about the packets, the defendant replied that they had “K chai” inside. The defendant was then arrested and cautioned. Under caution, the defendant said that the drugs were put in small packets for his convenience when consuming the drugs. The defendant also told the police officer that he had more drugs at home. 5.The defendant was then brought to his home at the charge 2 address. Inside Room 2, police officers found a box in the living room. Inside the box were 11 packets of suspected dangerous drugs, 1 soup spoon, 1 electronic scales and 10 resealable plastic bags. When inquired by police officers, the defendant said that the small packets had Ketamine inside. The defendant was then arrested and cautioned again. Under caution, the defendant said the drugs were for his own consumption. The defendant was the tenant of Room 2 and the only person living there. 6.Government chemist later confirmed the narcotic contents of the drugs found on the defendant and in his living room. It was also found that the soup spoon and the electronic scales both had traces of Ketamine and traces of powder containing Ketamine respectively. The total amount of Ketamine involved in charge 1 and 2 is 25.59g. Previous convictions 7.The defendant has 5 previous convictions. His last 2 convictions were in 2001 for possession of dangerous drugs and Part I poison and he was sentenced to 4 months and 1 months’ concurrent imprisonment, suspended for 15 months. Mitigation 8.The defendant is 32. Prior to the arrest the defendant worked as a transportation worker earning about $600 per day. He got married in 2006. His father, younger brother and wife are in court to show their support. The defendant has a 4 year old son. Since his wife resides in mainland China, the defendant lives alone in Hong Kong, while his son lives with the defendant’s parents in Hong Kong. 9.The defendant is a filial son, contributing about $4,000 per month to his parents. It was submitted that, like most drug cases, the defendant was influenced by bad peers and started to take drug in around 2000. 10.The defendant began his remand for the present case in February 2010, being the first time that he has been incarcerated. Counsel for the defendant submitted that this fortunately gave him a very good opportunity to think seriously over the events that happened, and to recognize his duties to his family, especially to his son. Upon deep reflection, he feels genuinely sorry towards his parents, wife and son. There is also an unforeseen advantage in that the defendant is now no longer a drug dependent. Physically and psychologically he does not have the desire to take drugs anymore. The defendant is determined to turn a new leaf after his release from prison, to be a good husband and to set a good example to his son. He will look for a steady job with steady income to support his family and to repay society. 11.Mr. Yip was instructed to inform the court that 50% of the drugs involved in the 2 charges were for the defendant’s own consumption, asking the court to take that into account when sentencing. Sentence 12.The sentencing tariff for trafficking in Ketamine is found in the case of Secretary for Justice v Hii Siew Cheng (許守城) [2009] 1 HKLRD 1, CAAR7/2006. For trafficking in Ketamine of between 1-10g and 10-50g, the respective starting point after trial is that of between 2-4 and 4-6 years’ imprisonment. Self-consumption of 50% 13.It was put forward in mitigation that 50% of the drugs found were for the defendant’s own consumption. If that is true, then the total amount of dangerous drugs that was trafficked was around 12.8g, which would have attracted a guideline starting point of 49.5 months’ imprisonment. 14.Applying the case of HKSAR v Mo Cho Tik[1] [2001] 1 HKC 261, the simple possession of 12.8g of Ketamine would have attracted a guideline starting point of 12 months’ imprisonment. 15.On the basis of 50% of the drugs being for the defendant’s self-consumption, the total starting point before any discount is given would have been that of 61.5 months’ imprisonment[2], which is in fact 4.5 months more than the 57 months starting point I would have adopted for the trafficking of the full 25.59g of Ketamine. I will therefore interpret the facts to the advantage of the defendant and disregard his unsubstantiated claim of 50% of the drugs being for self-consumption. Proper Starting points 16.In relation to charge 1, for 7.8g of Ketamine, the appropriate starting point would be around 42 months’ imprisonment. Granting the defendant the full 1/3 discount for his guilty plea would bring the sentence down to that of 28 months’ imprisonment. 17.In relation to charge 2, for 17.79g of Ketamine, the appropriate starting point would be around 53 months’ imprisonment. Granting the defendant the full 1/3 discount for his guilty plea would bring the sentence down to that of 35.3 months’ imprisonment. 18.Bearing in mind the circumstances of the case, the defendant in essence was trafficking a total of 25.59g of Ketamine, which would have attracted a sentence after plea of 38 months’ imprisonment (starting point of 57 months’ imprisonment), I will order that 10 months of charge 2 be served consecutively to the sentence in charge 1, making the total sentence for the 2 charges that of 38 months’ imprisonment. 19.Bearing in mind further that there are special circumstances on the papers which justify a lenient view to be taken of the facts, I will further reduce this sentence to 22 months’ imprisonment.
[1] “We remain of the view that the starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months.” per Stock JA [2] This would be the guideline starting point for 32.5g of Ketamine. |
Cases cited in this judgment