HKSAR v. Yau Tsz Hin

DCCC 132/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 132 OF 2012

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REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Trafficking in a dangerous drug" (Charge 1) and a charge of "Possession of a dangerous drug" (Charge 2). Cocaine and ketamine are involved in the 2 charges respectively.

Summary of Facts

Charge 1

2.About 4:00 pm on 8 November 2011, police officers intercepted the defendant outside his residence situated at Room D, 10/F, Victory Building, No.199 Castle Peak Road, Tuen Mun (the "Flat"). Upon search, a transparent resealable plastic bag containing 22 transparent resealable plastic bags (later found to contain a total of 4.80 grammes of a solid containing 4.10 grammes of cocaine) was found in the right front pocket of the defendant's shorts.

3.Under caution, the defendant admitted that shortly before his arrest, he was instructed by someone named "Chu Chai" to convey the "Coke" to the defendant's home.

Charge 2

4.The Police entered the Flat using the key found on the defendant.  A house search was conducted.  On a table in the living room, the following items were found :-

(i) 3 transparent resealable plastic bags (later found to contain a total of 31.45 grammes of a powder containing 8.64 grammes of ketamine);

(ii) 1 electronic scale;

(iii) 1 plastic spoon; and

(iv) 4 piles of empty transparent resealable plastic bags.

A large number of empty transparent resealable plastic bags were also found in the wardrobe in the defendant's bedroom.

5.Under caution, the defendant admitted that he purchased the "K chai" for his own consumption.  He used the electronic scale to weigh the "K chai" as he did not want to be deceived by others.

6.In his video recorded interviews, the defendant admitted that he was asked by Chu Chai to take custody of some $9,000 worth of cocaine.  Chu Chai gave him the cocaine and told him to take it home.  No monetary reward was involved, except the defendant was promised some cocaine in return.  The defendant claimed to be the sole occupant of the Flat and holder of the only key to the Flat.

Mitigation & Sentence

7.The defendant is now 26 and has 1 previous conviction which is not related to dangerous drugs.

8.Defence lawyer Mr. HO informed me that the defendant's mother left the family in 2005 owing to her substantial gambling debt; the defendant has not seen her since.  The defendant's father is unemployed and still has to pay the debt collectors.  The defendant has 5 younger siblings, 4 of them are still in secondary school.  The defendant has therefore become the sole income source of his family.  He was earning $10,000 per month as a transportation worker and contributed $7,000 to his father as family expenses and repayment of his mother's debt. 

9.Unfortunately in October 2011, the defendant was laid off.  He was frustrated and was under great financial pressure.  He began to consume ketamine for stress relief.  Also, the defendant thought he could earn some quick money through drug trafficking.  A letter from the defendant was placed before me; its contents are duly noted.

10.Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious) is no mitigating factor for committing a crime.  I cannot stress this enough.  Furthermore, a clear message must be conveyed to the general public that "drug trafficking" is a serious crime and that drug traffickers would most certainly be punished by long-term imprisonment even for fresh offenders.

11.The Court of Appeal has laid down clear sentencing guidelines for trafficking in cocaine (see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 and The Queen v LAU Tak-ming & others [1990] 2 HKLR 370).  For up to 10 grammes of cocaine, the sentence ranges from 2 to 5 years' imprisonment.

12.For Charge 1, it involves 4.10 grammes of cocaine, I adopt a starting point of 3 years' imprisonment.  A one-third discount is given for the guilty plea, reducing the sentence to 2 years.  For Charge 2, the defendant was in possession of 8.64 grammes of ketamine, I adopt a starting point of 12 months' imprisonment.  A one-third discount is given for the guilty plea, reducing the sentence to 8 months.  Apart from the guilty pleas, I see no other mitigating factors which warrant any further discount.  The sentences I pass for Charges 1 and 2 are 2 years and 8 months respectively.

13.According to both the Summary of Facts and the mitigation put forward by Mr. HO, the defendant trafficked in cocaine and possessed the ketamine for self-consumption.  In other words, both charges are separate and distinct.  Having considered the totality principle, I order 6 months in Charge 2 to be served consecutive to Charge 1.  Thus, the total prison term for both charges is 2 years and 6 months.