HKSAR v. Lau Kin Yip and Another

DCCC 185/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 185 OF 2012

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REASONS FOR SENTENCE

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1.On 14 May, 2012, D1 pleaded guilty to one count of possession of a dangerous drug (Charge 1) and D2 pleaded guilty to another count of trafficking in dangerous drugs (Charge 2) before me in the District Court. D1 was initially also charged with D2 in Charge 2 but the prosecution was content that the charge be left in the court’s file in light of his plea in Charge 1. The subject-matter of the dangerous drugs in this case are cocaine and ketamine. In the possession charge (Charge 1), there were 0.44 gramme of solid containing 0.39 gramme of cocaine. In the trafficking charge (Charge 2), there were 4.61 grammes of a powder containing 2.19 grammes of ketamine and 22.94 grammes of a solid containing 19.05 grammes of cocaine.

2.At around1.05 am on 5 January 2012, D1 was seen by two police officers at Kok Cheung Street, Tai Kok Tsui, Kowloon acting furtively.  The officers subsequently stopped the defendants.  Upon search, a tissue paper wrapping 2 resealable plastic bags containing the cocaine as set out in Charge 1 was found from the right front pocket of D1’s trousers. 

3.D1 admitted under caution that the drugs were for his own consumption.  He told the police that he had left his wallet in the flat upstairs and he would lead the police to his flat.

4.The police followed D1 to the flat for a house search.  Upon entry, they found D2 sleeping on the bed thereat.  Besides the bed was a computer desk.  On the desk, there were an electronic scale, 10 empty resealable plastic bags, and 3 plastic bags and 27 smaller resealable plastic bags containing the cocaine and ketamine as set out in Charge 2.  D2 admitted under caution that all the drugs found on the desk belonged to him.

5.The estimated street value of all the drugs seized was about $27,562.

6.After hearing the preliminary mitigations, I adjourned the case for the purpose of obtaining pre-sentencing reports for D1.  D1 was remanded in custody whilst D2 is currently serving a Drug Addiction Treatment Centre (DATC) Order.

7.D1 is in fact the younger brother of D2.  He is 17 with a clear record.  He was born in China and he came to Hong Kong in 1999.  He only received education up to Form 1 and he dropped out from school in 2009 due to a lack of interest to study.  He had since worked as hairdressing, kitchen and sushi apprentice before and shortly before he was convicted of Charge 1, he worked in a hair salon, earning a monthly income of $6,000. His parents were divorced in 2003 and D1 lived with the father.  The father became single parent and was unable to work due to illness and disability and for all these years were living on public assistance and disability allowance.  D1 is remorseful and cooperates with the police.  According to the DATC report, D1 is not a drug dependent and he is considered as unsuitable for admission to the DATC.  According to the Probation Officer’s Report, at the time of the offence, D1 just took away 2 packets of ketamine from his elder brother out of curiosity and planned for self-consumption.  The probation officer recommended a 12-month Probation Order with additional requirements.

8.D2 is 21. He has one previous similar conviction of trafficking in a dangerous drug in 2007 and for that he was sentenced to the Rehabilitation Centre.  He has another more recent record of possession of a dangerous drug in January 2012 for which he was sentenced to the DATC.  He was also born in China and he came to Hong Kong in 1999 with D1.  As revealed in his last DATC report, he left school in 2006 without completing F.2.  He had worked as a “shampoo boy” and a delivery worker initially after quitting school.  After coming out from the Rehabilitation Centre in 2008, he worked as a kitchen worker and worked in different restaurants.  Mr Poon, his counsel, last told the court that he was working as a casual kitchen worker in Tung Chung, New Territories earning about $7,500 a month before he was remanded in custody for a DATC report in January 2012.  According to the same report which was sought by the Kwun Tong Magistracy, D2 started to toy with ketamine with his dubious peers in 2006 until he was sentenced to the Rehabilitation Centre in 2007.  After he was released, he relapsed into sniffing ketamine again and worse still, he also started smoking cocaine in June 2011.  The flat where the drugs in relation to Charge 2 were found was rented by D2.  Mr Poon told the court that he brought the drugs partly for his own consumption and partly for trafficking and urged the court to consider reducing the sentence to be imposed.

9.I shall deal with D2 first as the “trafficking” charge he faced is far more serious.  The subject-matter of the drugs were ketamine and cocaine. For ketamine, the guidelines in Secretary for Justice v Hii Siew-cheng CAAR 7/2006 is applicable in this case.  According to the guideline, when the quantity is over 1 gramme to 10 grammes, the sentence is between 2 to 4 years’ imprisonment.  For trafficking in cocaine the sentencing guideline can be found in Lau Tak Ming [1990] 2 HKLR 371 and Pedro Nel Rojas [1994] 2 HKCLR 69.  A defendant who trafficked in 10 to 50 grammes of cocaine would expect a custodial term of some 5 to 8 years’ imprisonment.

10.Since I will sentence D2 on Charge 2 on the basis of two types of drugs, namely ketamine and cocaine, I have considered the Court of Appeal’s decisions on the two sentencing approaches, ie “combined” approach and “individual” approach: HKSAR v Yip Wai Yin CACC 80/2003, HKSAR v Cheng Yat Ming CACC 455/2006, HKSAR v Ho Chi Shing CACC 216/2008 and HKSAR v Ko Ka Hing CACC 355/2008. In this connection, the Court of Appeal said in HKSAR v Ho Chi Shing:

“14. In the ‘combined’ approach, … the most serious drug provides the starting point of sentence, which can then be adjusted upwards to take into account the quantity of the less serious drug.

15. The ‘individual’ approach … involves a separate starting point for each of the component drugs and the starting points will then be combined and adjusted to form an overall starting point.

16. Whether to adopt the ‘combined’ or the ‘individual’ approach depends on the circumstances of a particular case and it is a matter of discretion for the sentencing judge. Whatever approach is adopted, the important consideration is the totality of the overall starting point.

17. The applicant trafficked in substantial quantities of both cocaine and ketamine. The drugs were not mixed, but in separate and distinct packages. The judge was entitled to adopt the ‘individual’ approach by identifying separate starting points for trafficking in the cocaine and ketamine, and then adopting an overall starting point.”

11.When faced with a person trafficking in different quantities of drugs which attracted different tariffs, a judge was to sentence fairly, realistically and in a commonsense manner (HKSAR v Yip Wai Yin(unrep, CACC 80/2003, [2004] HKEC 819) applied).  As the ketamine and cocaine in Charge 2 were not mixed together but were contained in different packages, I will adopt the “individual” approach as in Ho Chi Shing.  Applying the guidelines, the appropriate starting point for the quantity of ketamine is 2 years whereas the appropriate starting point of cocaine is 5 years.  Based on totality principle, the overall starting point should be 6 years’ imprisonment.

12.Mr Justice Stuart-Moore, V-P in Court of Appeal decision of HKSAR vWong Suet Hau [2002] 1 HKLRD 69 had already made it clear that social trafficking should not be considered as a general basis for reduction of sentence for the evil it brought upon society and the users, be it that the drugs were sold for a profit or shared with no additional financial gain.

“In our opinion, while some of the ‘social’ or ‘non-commercial’ trafficking cases involving small quantities of drugs can properly be regarded, when all the circumstances are examined, as falling into the lower end of the sentencing scale applicable to the dangerous drug in question, we are firmly of the view that this factor should not, in itself, provide a general basis for imposing a lighter sentence, than would have been imposed for commercial trafficking. The ‘friend’ who starts off or perpetuates another’s abuse of drugs, is as dangerous to the community as the commercial supplier of small quantities, who will generally traffic in drugs with those already addicted.”

13.There is no doubt in my mind that D2 possessed the ketamine and cocaine in his own flat for the purpose of trafficking and he had pleaded guilty.  The presence of the electronic scale and the empty plastic bags together with the large numbers of the smaller plastic bags of drugs (there are 29 including the 2 found on D1) all pointed to packaging of drugs conducted inside his flat.  He had already a previous record of drug trafficking and the street value of the drugs were around $27,000 which is almost 3 times of his average monthly salary when he worked as a kitchen worker.  According to his last DATC Report, however, prior to his current sentence, he became jobless in mid-2010 and remained jobless until January 2012.  Today Mr Poon told me that in fact he had only worked for 4 months during the period on a casual basis and as such, there was no way he could afford to rent a flat let alone purchase the drugs in its present quantity through his normal income.  D2 is a drug addict himself and I accept that but there is simply no evidence presented as to how much he intended to share with his friends and how much for his own use.  Even the 2 packets found in D1 were just being taken away without his knowledge but not giving away by him.  Given the present quantity of drugs, any proportion which would be used for his own consumption will pale into insignificant.  I will therefore sentence him on the basis of the entire quantity of drugs seized.

14.Having considered the background of D2 and the amount of the two kinds of drugs are involved, I do not find any mitigating factor which justify leniency. I shall reduce the overall starting point by one-third to reflect his plea.  The sentence I shall pass on D2 in Charge 2 is therefore 4 years’ imprisonment.

15.As for D1, the quantity of cocaine involved is small and the DATC report confirms that D1 is not a drug addict.  He was being charged with possession only.  He has a clear record and he pleaded guilty to the charge.  In his own letter to the court today, D1 had promised me to abstain from the drugs in future and followed his mother to work in a hotel.  A period of open supervision by the probation officer should be useful to rehabilitate D1 in an open setting.  With his consent, I shall therefore follow the recommendation of the Probation Report and sentence D1 to a period of 12- month Probation Order with the additional conditions as set out therein (the effect and consequences of breach of Probation explained and understood by D1).

16.The court has of course much sympathy for the parents of both defendants especially the mother who has expressed much regrets in her letter for failing to provide sufficient parental care and supervision to the two sons as a result of her divorce.  By this order, D1, the younger son will be released from the custody today and returned home to be reunited with the parents and reform himself in an open setting.  For D2, the elder son, he needs to be punished severely and learned his lesson in a bitter way for the more serious crime he has committed and hopefully, his sentence would also has a deterrent effect not only on himself but his younger brother as well.