HKSAR v. So Yiu Fai

DCCC411/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 411 OF 2012

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Reasons for Sentence

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1.The defendant, the 2nd defendant of this trial, has been convicted after trial of trafficking 114.42 grammes of ketamine with the 1st defendant as well as a second charge of assaulting a police officer, contrary to section 36(b) of the Offences against the Persons Ordinance.

2.I do not intend to repeat the facts nor my findings as I have dealt with them at length in my reasons for verdict.  I will repeat that I believed PW1 did see the 2nd defendant pass a white soft packet to the 1st defendant in a suspicious manner, clearly designed to be unseen by others.  I am sure that the same bag was the bag of dangerous drugs, ketamine, held in the 1st defendant’s hand very soon after that exchange. 

3.From the prosecution’s evidence, I was sure that the 2nd defendant dealt with the dangerous drugs of Charge 1.  I am sure he assaulted PW1 when PW1 was trying to apprehend the 1st defendant.  I am sure he punched PW1 in the body and kneed him in the groin area.  He told the 1st defendant to run away and he then managed to get away himself.

4.In mitigation, I have heard that the defendant is a family man, married with a young child.  He lives with his extended family and works with his father.

5.I have also been told during the trial, and I will take it into account, that he was a man of clear record. 

6.Where an appropriate sentence is concerned, I have to consider the authority of The Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1.  There the Court of Appeal laid down tariffs for trafficking in the drug ketamine and where trafficking in a quantity of between 50 to 300 grammes of ketamine is concerned, an appropriate term of imprisonment would be between 6 to 9 years. 

7.Mathematically speaking, the amount of dangerous drugs in this case would attract a sentence of about 6 years and 9 months.  I have had the advantage of reading the reasons for sentence from the sentencing judge of the 1st defendant and know that a starting point of 6 years and 9 months was found to be appropriate for the 1st defendant. 

8.Although the defendant is a few years older than the 1st defendant, the main difference is that the 2nd defendant here was a man of clear record whereas the 1st defendant had previous convictions including one for possession of dangerous drugs. 

9.Where Charge 2 is concerned, an assault on a police officer under section 36(b) would attract an immediate custodial sentence.  Assaults on police officers must be deterred.  I will take into account the assault itself including the knee to PW1’s groin, the length of sick leave granted and that he had suffered no lasting serious injury. 

10.I have after considering the facts of this case, the quantity of drugs, mitigation put forward and your previous clear record. The previous clear record will attract a slightly lower starting point, for Charge 1, I will take a starting point of 6 years and 6 months.  You have pleaded not guilty and were convicted after trial, no further discount is considered appropriate.  For Charge 2, I take a starting point of 6 months’ imprisonment.

11.For Charge 1, you are sentenced to 6 years and 6 months; for Charge 2, 6 months.  Both sentences will be ordered to be served concurrently, that would mean a total of 6 years and 6 months’ sentence.