HKSAR v. Lau Ka Yee

DCCC762/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 762 OF 2011

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Reasons for Sentence

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Background

1.The Defendant was convicted after trial of one charge of “trafficking in a dangerous drug”, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. 

2.In the early hours of 5 June 2011, the Defendant was stopped by the police. At the time, she was found to have 20 plastic bags of ketamine. The drug weighed 150 grammes in total and it contained 120 grammes of ketamine. Under caution at the scene, the Defendant replied that the drug was for her own consumption. When asked as to how she had obtained the drug, the Defendant did not answer. In the subsequent interview, the Defendant repeated that she knew the drug was ketamine and maintained that she was there to take night snacks.

3.Having considered all the evidence before me, I concluded that the only reasonable inference was that the Defendant, at the time, possessed the drug for the purpose of trafficking. I therefore convicted her of the charge.  

Mitigation

4.The Defendant is aged 19. Before sentencing, I have asked for the preparation of a background report. The Defendant, however, has been told in very clear terms that there are sentencing guidelines for this type of offences and that an immediate custodial sentence of some length is inevitable.

5.The report disclosed that the Defendant came from a broken family. Her parents divorced when she was two. The custody of the Defendant and her elder brother was given to the father. It was said that as the father often had to work, the Defendant received little parental supervision. At the age of 11, the Defendant started to mingle with undesirable peers. At the age of 14, she started taking drugs. When the Defendant was attending Form 3, she dropped out from school. Since then, she has taken up various jobs, including a waitress, a night-club hostess, and a prostitute.

6.Today, letters written by the Defendant and her father were provided to the court. The Defendant expressed her remorse and her determination to turn over a new leaf. Her father also begged for leniency on the Defendant’s behalf.  

7.The Defendant has been before the court on three previous occasions. The convictions are “common assault”; “AOABH”; and “criminal intimidation”. She has been put on probation and has been sent to the DATC. 

Sentencing Considerations

8.Generally speaking, the court would be slow in sending a young person to prison. However, the offence in respect of which the Defendant was convicted is an excepted offence in Schedule 3 of the Criminal Procedure Ordinance, Cap. 221. Therefore, section 109A, which requires the court to consider other methods of dealing with young offenders, is not applicable.

9.The court has said time and again that there is a need for deterrence when dealing with offences like trafficking in a dangerous drug. It is also the principle that in order to deter drug syndicates from recruiting young people to be their couriers, age carries little weight in mitigation in this type of offences.

10.The guidelines for trafficking in ketamine were laid down in SJ v Hii Siew Cheng ＆ Another [2009] 1 HKLRD 1. For trafficking in 50 to 300 grammes of ketamine, the term of imprisonment should be between 6 and 9 years. In the present case, for the 120 grammes of ketamine involved, and taking into account the relevant facts as well as the Defendant’s background, I consider a starting point of 80 months to be appropriate.

Sentencing the Defendant

11.The Defendant was convicted after trial and she would not be entitled to the one-third reduction associated with a guilty plea.

12.Having carefully considered all that was said on the Defendant’s behalf in mitigation, I do not see any powerful mitigation which would warrant any reduction in sentence.

13.The Defendant is therefore to serve a term of 80 months in respect of this charge.