HKSAR v. Yao Tat Fung

DCCC 26/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 26 OF 2014

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Reasons for Sentence

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1.Defendant pleaded guilty to three charges, including trafficking in a dangerous drug, possession of dangerous drug and possession of apparatus fit and intended for inhalation of a dangerous drug.

2.The facts were that at 6.35 pm on 21 October 2013, police found the defendant acting furtively outside Ground Floor, Yuet Wing House, Tin Yuet Estate in Tin Shui Wai.  Defendant was intercepted, upon search, in his left hand police found a black zippered case with 5 plastic bags, each containing dangerous drugs between 0.3 gramme to 6.8 grammes.  Government chemist later confirmed that to be total of 12.1 grammes of solid containing 9.66 grammes of ketamine.  There were also 2 glass tubes and 4 plastic tubes containing traces of powder of methamphetamine suitable for inhalation.  While in defendant’s right hand, there was a red plastic bag with a biscuit box containing plastic bags with 2.53 grammes of herbal cannabis.  

3.Under caution, defendant admitted he helped to traffic the dangerous drugs as he had no money and he would be rewarded 1,000 to bring them to Yuet Wing House, but he had yet rewarded before the interception.  However, he had a look inside and knew there were “Ice” and “Ice” flask. While for the cannabis, he admitted buying them 2 days ago for $800 and he intended to smoke for relaxation.  

4.As to the apparatus, defendant said it was already inside the zippered case.  The street value of the ketamine was about $1,400 and the cannabis about 300.

5.Defendant is 31 years old.  He had 3 previous criminal record.  The last one was possession of dangerous drugs where he was sentenced to 8-month imprisonment suspended 24 months in April 2013.  Thus, by committing the present offence, the defendant was in breach of the suspended sentence.

6.Mr Davies submits that the defendant was not playing significant role but just a courier.  His sister also pleaded leniency for him by enclosing a letter stating that the defendant was always caring to the family and now her mother also suffers from cancer, hoping that defendant could be released earlier for family reunion.

7.Trafficking in a dangerous drug is a very serious offence. In Secretary for Justice v Hii Siew Cheng CAAR 7/2006, the Court of Appeal had laid down the guideline where trafficking in ketamine between 1 to 10 grammes, 2 to 4 years’ imprisonment. 

8.In the present case, there was 9.66‑gramme ketamine.  Therefore almost 4 years’ imprisonment could be taken as starting point.  However, considering the background and all the circumstances of the defendant, I would adopt 3½ years as starting point, to be reduced to 28 months upon guilty plea.  

9.For possession of herbal cannabis and apparatus fit and intended for inhalation, 3-month imprisonment would each be taken as starting point, to be reduced to 2‑month imprisonment respectively.   

10.As to the suspended sentence, I see no reason why it should not be activated. 

11.However, for the totality principle, taking into account the fact that defendant pleaded guilty at the earliest opportunity and showing full co-operation to the police and thus saving court’s time and resources, I consider it appropriate that all the sentence of three charges could be run concurrently except that for the suspended sentence, only 4 months be activated and to be run consecutively.

12.Thus, the sentence is as follows:

1^st charge: 28 months’ imprisonment;

2^nd & 3^rd charges: 2 months’ imprisonment respectively;

All the charges be run concurrently and the suspended sentence of the case TM 4228/2012 be activated but only 4 months be run consecutively. Thus, the total sentence for the defendant for all the charges and for the activation of suspended sentence to be added would be 32 months’ imprisonment.

13.So for all the charges and the suspended sentence be activated, total sentence is 32 months’ imprisonment.