HKSAR v. Lau Tak Chun

DCCC 954/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 954 OF 2012

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Reasons for Sentence

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1.Defendant appeared before me this morning and pleaded guilty to a single charge of trafficking in a dangerous drug, contrary to section 4(1)(a) & (3) of the Dangerous Drugs Ordinance, Cap 134.

2.The particulars of the offence avers that the defendant, on the 12^th day of August 2012, near Lamp Post No AD0967, Yung Shing Court, Fanling, New Territories in Hong Kong, unlawfully trafficked in a dangerous drug, namely 22.44 grammes of a powder containing 18 grammes of ketamine.

The Facts

3.This is a simple stop and search case.  A team of police officers were patrolling in the vicinity of Yung Shing Court, No 8 Fai Ming Road, Fanling, in the early hours of 12 August 2012 when they spotted the defendant acting suspiciously and standing beside a private car.  The officers then approached the defendant and intercepted him and conducted a body search on his person.  One plastic bag, (“Exhibit 1”), that contained three other resalable plastic bags, (“Exhibit 2 to 4”), containing white powder which was suspected to be ketamine was later found hidden in the right front pocket of the pair of the trousers that the defendant was wearing at the time. 

4.Initially upon arrest and later on a subsequent investigation by the police, the defendant maintained that the ketamine was brought by him from a person called “Ah Ching” for a sum of $2,300 and that the drugs was for his self-consumption.  The suspected dangerous drugs that were seized from the defendant was later delivered to the Government Laboratory for examination and the Government Chemist examined the contents of Exhibit 2 to 4 and certified that all the exhibits had contained the drugs as particularised in the charge.  The total value of the drugs seized from the defendant is $2,939.64. 

5.Lastly, the police had found a total cash sum of $9,076 in the possession of the defendant on the arrest.  The cash was made up of 20 pieces of $100 banknote, 14 pieces of $500 banknote, one piece of $50 banknote and the rest of the sum was in coins. 

Criminal Records and Personal Background of the Defendant

6.The defendant is now aged 27.  He is still single.  In the past he has appeared in court twice in two previous occasions facing three different charges, two of which are in relation to “possession of the dangerous drugs”.  In 2010, he was convicted of the first “possession of dangerous drug” charge for which he was given a probation for 12 months. However, just three months after the expiry of the probation, in June 2011, he was convicted for another “possession of dangerous drug” charge and the magistrate order him to serve a 2 months’ imprisonment but which is suspended for 18 months.  In other words, the defendant has breached this suspended sentence when he committed this present offence. 

7.The defendant lives together with his parents and also one elder sister.  He has obtained education level up to Form 3.  After leaving school, he became a construction worker and he has been working steadily for the past 11 years.  According to Mr Si, his solicitor, he earned income of $14,000 per month.

8.According to Mr Si, although the defendant has been convicted of the two “possession of dangerous drugs” offences, he was not really a deep-rooted drug addict.  The reason why he resorted to committing the more serious “trafficking in dangerous drugs” offence, I was told, was because he was in need of money for his wedding expenses.  The defendant obviously was foolish enough to be lured by a reward for only $1,000 for carrying the present quantity of the drugs. 

9.In mitigation, Mr Si prayed in aid the fact that the defendant was very remorseful and cooperative with the police after the arrest.  Mr Si had also urged the court to consider passing a more lenient sentence in light of the relative young age of the defendant and to take into account the fact that the defendant was only four months away from the expiry of the suspended sentence.

Sentencing Considerations

10.Trafficking in dangerous drugs is of course a very serious offence and any person who is involved in this kind of criminal activity would expect to be dealt with severely by the court.  A message has to be sent to other young persons like the defendant who are easily to be lured by other people from behind to engage in trafficking of dangerous drugs activities.

11.It is lamentable to see the defendant who was all along in steady employment would resort to a crime like this in order to earn quick money to finance his marriage expenses.  The defendant should think before he leaps.  Clearly he had not thought through the consequences.

12.The Court of Appeal has, in the case of SJ v HiiSiew-cheng [2008] 3 HKC 323, acceded to the request by the prosecution to upwardly adjust the sentence tariff for ketamine in light of the common abuse of this drug especially among youngsters.  As a result, the Court of Appeal decided that for the quantity of 10 to 50 grammes of ketamine, the sentence should be between 4 and 6 years.  The present offence involves a quantity of 18 grammes of ketamine. 

13.The chief mitigating factor as I can find is only the defendant’s pleading of guilty for which he would be given the customary one-third discount.  The court is of course sympathetic with the mother and also his girlfriend in the mainland but the Court of Appeal has repeatedly said in the past that in cases like this, family circumstances virtually play no part in mitigation.

Order

14.In light of the mitigation, I would adopt a lower starting point which is 4 years.  After the one-third discount, the sentence that he should receive in respect of this charge is reduced to 32 months’ imprisonment.  For the breach of the suspended sentence, I decided that I still have to activate one month out of the 2 months’ sentence.  In other words, the defendant has to serve an extra 1 month on top of the 32 months sentence that I have just passed.  In total, hetherefore will serve a sentence of 33 months’ imprisonment.