HKSAR v. Lau Fei and Another

DCCC 451/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 451 OF 2012

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REASONS FOR SENTENCE

1.D1 and D2 both pleaded guilty to a charge of "Trafficking in a dangerous drug". The dangerous drug involved is ketamine.

Summary of Facts

2.About 10:40 pm on 7 March 2012, DPC 58351 and DPC 58627 saw D1 and D2 entering Wah May Building situated at Nos.207-213, Portland Street, Mongkok.  They followed D1 and D2 into the building and saw them taking the lift to the 5^th Floor.

3.DSgt 50111, DPC 52505 and WDPC 57176 soon arrived at the building to assist.  They waited for the lift on the Ground Floor to go upstairs.  The lift arrived and both defendants came out. The officers intercepted them.  They told the officers that they went to the 5^th Floor to find a friend and to use the washroom.  The officers took both of them to the 5^th Floor.

4.The entire 5^th Floor was occupied by a guesthouse named Lucky Villa.  DPC 58531 brought D1 into a room of the villa for enquiries.  Upon search, a resealable transparent plastic bag which contained 6 resealable transparent plastic bags of suspected dangerous drugs (collectively "E1") was found inside the waistband of D1's trousers.  Under caution, D1 admitted that a person named "Ah Wai" asked him to deliver the ketamine to someone at the villa for a reward of $1,000.  D1 confirmed that Ah Wai is D2.

5.Whilst D1 was being investigated, DPC 58627 brought D2 to the 5^th Floor staircase for enquiries.  Upon knowing the results of the search of D1, DPC 58627 arrested D2 as well.  Under caution, D2 admitted that someone asked him to bring the ketamine there.  He asked "Ah Fei" to accompany him since he was afraid to go alone.  D2 confirmed that Ah Fei is D1.  D2 claimed that he did not know to whom the delivery should be made; he was just asked to bring the stuff upstairs.

6.E1 was later found to contain a total of 168.03 grammes of a powder containing 80.02 grammes of ketamine.

7.The manager of the villa (Madam CHEUNG) confirmed that about 10:40 pm, 2 males came into the villa and knocked on the door of Room 3.  Having discovered that they got the wrong person, the 2 males left.  Madam CHEUNG pointed out D1 and D2 to the Police that they were those 2 males.

8.D2's home was searched by the Police with his consent.  The door to D2's home was opened using the keys found on him.  From a jacket found in D2's home, the Police found in its left front pocket a resealable transparent plastic bag containing a total of 38 resealable transparent plastic bags, which are of the same type as the ones contained in E1.  An electronic scale was also found in the right front pocket of the jacket.

Mitigation

D1

9.D1 is now 18 and has 1 non-drug-related conviction. His lawyer Mr. CHEUNG informed me that D1 is not a drug addict.  He was educated up to F.3 and was unemployed at the time of the offence.  Mr. CHEUNG submitted that D1 was in financial difficulty since his father had lost over $1 million from gambling in Macau.  D1 wanted to earn some quick money to help his family.  Letters from D1's parents, grandparents and fiancée were placed before me.  Their contents are duly noted.

D2

10.D2 is almost 23.  He has 6 conviction records, 4 of which are "simple possession".  He has been dealt with by way of probation, DATC and imprisonment.  He was last sentenced to 16 months in March 2011.  It is plain that he committed the present offence shortly after release from prison. 

11.Mr. Omar informed me that D2 was educated up to F.2.  He once worked for PCCW earning about $10,000 per month, but was unemployed at the time of the offence.  D2's parents were divorced when he was 3.  He was brought up by his paternal grandmother, who passed away when D2 was 15.  D2's father seldom came home.  As a result, D2 began to mix with undesirable peers, which resulted in his committing the previous offences.  Mr. Omar stressed that D2 had decided to plead guilty before the court gave its ruling on the admissibility of his verbal admission and even before the close of the prosecution case.

Sentence

12.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.  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.

13.The sentencing tariff for trafficking in ketamine is laid down in SJ v HII Siew Cheng [2009] 1 HKLRD 1.  For 50 to 300 grammes, the sentence ranges from 6 to 9 years' imprisonment.  In this case, the defendants jointly trafficked in a total of 80.02 grammes of ketamine.  I adopt a starting point of 75 months for both of them.

14.For D1, a one-third discount is given for his guilty plea, reducing the sentence to 50 months.  Apart from this, I see no other mitigating factors which warrant any further discount.  The sentence for D1 is therefore 50 months' imprisonment (4 years and 2 months).

15.For D2, he pleaded guilty on the 2^nd day of a 4-day trial.  Prosecution has called 4 witnesses with 1 more to go.  To be fair to D1, who pleaded guilty at the outset, I cannot give D2 the full one-third discount for his guilty plea.  Instead, I will reduce D2's sentence from 75 months to 53 months.  Apart from this, I see no other mitigating factors which warrant any further discount.  The sentence for D2 is therefore 53 months' imprisonment (4 years and 5 months).