HKSAR v. Au Yeung Sai Yu
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DCCC 1085/2014 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 1085 OF 2014 -----------------------------------
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---------------------------- Reasons for Sentence ---------------------------- 1.The defendant pleaded guilty to one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134. Particulars are that he on 7th October 2014 at room 8, first floor, New Kings Villa, Yuen Long unlawfully trafficked in 52.60 grammes of a solid containing 29.22 grammes of ketamine. Summary of facts 2.The defendant was intercepted by Sergeant 58923 at around 4:05 pm on the charge date. Upon search, a re-sealable plastic bag containing some white crystalline solids were found from his right trousers pocket. 3.The defendant was then brought to the charge premises where a search warrant for the premises was executed. Upon search, a total of 36 re-sealable plastic bags, each containing some white crystalline solids, were found from two cigarette boxes inside a purple paper bag on the side table next to the bed inside room 8 of the premises. 4.The defendant was arrested and cautioned. In the cautioned video recorded interview held on the same day, the defendant admitted that he knew the drugs found on his person and inside room 8 were ketamine; that he was given a mobile phone by someone in order to receive orders of drugs from clients; that he would be given around $1,000 per day for re-selling of the drugs; that he recorded the transactions on a piece of paper that was found inside room 8; and that he was unemployed. 5.The defendant had 2 mobile phones with two SIM cards and cash of $2,877.60 on his person at the time of his arrest. 6.The total estimated value of the ketamine found on the defendant and the premises is around $6,259.40. 7.At paragraph 8 of the summary of facts that the defendant admitted to in court after it was read out to him subsequent to his guilty plea, it is stated that the defendant possessed the ketamine for the purpose of unlawful trafficking at the material times. Previous convictions 8.The defendant was convicted on 23rd April 2009 for possession of dangerous drugs and was sentenced to 12 months’ probation. This is a spent conviction and as such, pursuant to section 2(1)(i) of the Rehabilitation of Offenders Ordinance, Cap.297, this evidence is inadmissible to show that the defendant was so convicted in Hong Kong. The defendant shall be sentenced as if he is of previously clear record. Mitigation 9.The defendant is 24, born in Hong Kong, educated up to form 5 level and single. He was unemployed at the time of his arrest. Before that, he worked as a transportation worker earning $12,000 a month. I was also told that he used to work as a part time warehouse worker as well. 10.Two mitigation letters and one medical appointment slip were handed up. The defendant explains through his letter how he had grown up in a single parent family, how his father suffers from long term illness and how he committed the offence hoping to get some money to lessen his mother’s burden. Madam Ma in her own letter pleads with the court to deal with his son leniently. Sentencing tariff 11.The guidelines for sentencing in ketamine trafficking cases are found in the case of Secretary for Justice v Hii Siew Cheng (許守城) [2009] 1 HKLRD 1, CAAR7/2006. The tariff for sentence after trial for traffickers in ketamine of between 10 to 50 grammes is that of 4 to 6 years’ imprisonment. Ms. Lee for the defendant confirmed that she had explained to the defendant the likely sentence he will be facing based on the existing sentencing guidelines. Sentence 12.The maximum sentence for trafficking in dangerous drugs is that of life imprisonment. 13.Although the defendant is 24 years old, he cannot be regarded as of extreme youth. In serious cases such as the present one, his relatively young age is not a mitigating factor. 14.Likewise the defendant’s personal circumstances. Save for exceptional circumstances, the defendant’s personal circumstances would not amount to a mitigating factor. I find that the defendant’s decision to traffic in dangerous drugs in order to earn some quick money so that he could ease his mother’s financial burden cannot be a mitigating factor. People in similar situations where they are struggling financially must be deterred from resorting to criminal activities to solve their problems; and those who refuse to give in to temptations must not be made to feel that they had made the wrong choice to stay on the right side of the law. 15.In relation to the defendant’s clear record, such as it is, I find that there is no evidence of positive good character on the defendant’s part and therefore any discount merited for his clear record is embraced by the usual one-third discount granted upon his guilty plea. 16.Applying the sentencing guidelines, I find that an appropriate starting point is that of 57 months’ imprisonment. I find that there are no aggravating factors that warranted an increase in this sentence. I find that the only mitigating factor is the defendant’s guilty plea. The defendant is therefore sentenced to 38 months’ imprisonment after the one-third discount for his guilty plea.
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