HKSAR v. LAI TSZ KIT

DCCC 857/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 857 OF 2015

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Reasons for Sentence

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1.  Defendant has pleaded guilty to trafficking in dangerous drugs.

2.  On 9 July 2015 the defendant was caught with drugs leaving Hong Kong for Macau.  He was stopped in the Customs departure hall before he boarded a ferry by a Customs and Excise Officer.  He was searched and in his underpants the officer found 23.3 grammes of a solid containing 12.35 grammes of cocaine as well as 27.4 grammes of a powder containing 15.9 grammes of ketamine.  The defendant told the Customs officer that he knew the yellowish substance was cocaine, but did not know what the white powder was.

3.  Under caution, the defendant made a full admission.  He agreed that he was taking the dangerous drugs to Macau at the request of a friend.  This was a friend he could not contact.  It was arranged that an unknown male give him the drugs before he went to the ferry terminal. That male gave him the drugs and told him to hide them in his underpants to avoid detection by the authorities.  Someone would meet him on the other side in Macau at the ferry terminal after he arrived.

4.  The defendant’s best mitigation is his plea of guilty.  He is 27 years old and a man who has previous convictions.  He has four previous convictions, of which two relate to possession of dangerous drugs.  He, for those offences, was fined as well as ordered to serve a probation order.  His last conviction was in 2012.  I note he has no previous convictions for trafficking dangerous drugs.

5.  I have heard full mitigation and Miss Ma has said everything she can on behalf of the defendant.  The defendant is single and living with his mother and younger sister.  Although they both work, he is the main breadwinner of the family.  The reason that is the case is because the defendant’s father left home two years ago. 

6.  I have had letters from the defendant as well as his mother and younger sister.  All explain that the defendant had the financial burden of the household, that he committed this offence for quick money and he is very remorseful, and all ask for leniency.

7.  It has been explained in mitigation that the defendant had a debt of about $30,000, which he was hoping to pay off quickly and offered to traffic these drugs for payment.

8.  The Court of Appeal has guidelines for trafficking drugs. 

9.  For cocaine, I have referred myself to the authority of R v Lau Tak Ming & Ors [1990] 2 HKLR 370.  There, the Court of Appeal has said, where between 10 to 50 grammes of, in that case, heroin, but the same applies to cocaine, is trafficked, a 5- to 8-year starting point would be appropriate. 

10.  Here, mathematically speaking, for this quantity of cocaine, a 5 year 2 month starting point would be appropriate.

11.  For trafficking ketamine, I have referred myself to the authority of the Secretary of Justice v Hii Siew Cheng [2008] 3 HKC 323.  There, the Court of Appeal have said, where between 10 to 50 grammes of ketamine is trafficked, a starting point of between 4 to 6 years would be appropriate. 

12.  Here, for this quantity of ketamine, a 4 year 3 month starting point would be appropriate.

13.  This case has more than one type of drug and, to consider the sentencing approach, I have referred to the Court of Appeal authority, HKSAR v Yip Wai Yin & Anor [2004] 3 HKC 567.  The Court of Appeal discusses the various approaches to such a scenario and identifies either an individual approach or a combined approach to sentencing.

14.  In this case, there are significant quantities of both cocaine and ketamine.  If I consider the individual approach and add the two starting points I referred to earlier together, the starting point would be grossly excessive. 

15.  The sentencing brackets for the two types of drugs here are not dissimilar, so I adopt the combined approach.  I then take into account the absurdity test, the conversion test and the ratio test to ensure I do not take too high a starting point for this approach.

16.  Miss Ma has referred me to two authorities, HKSAR v Wong Wai Hong, CACC 213/2013, as well as HKSAR v Chan Yuk Leong, CACC 318/2013.  I have taken them into account.

17.  I identify cocaine here as the more potent drug and, in any event, the quantity of cocaine attracts the highest starting point between the two drugs.  Although there is 3½ grammes more ketamine than cocaine, the starting point for the cocaine is still about 1 year more when I take into account the guidelines.

18.  Defendant, please stand up.

19.  After considering the facts of the case, the defendant’s plea, the fact he has previous convictions but no trafficking dangerous drugs conviction, his co-operation with the Customs and Excise, mitigation, and the guidelines and authorities I have just referred to, I take for this quantity of cocaine a starting point of 5 years’ imprisonment.

20.  I will make an upward adjustment to take into account the quantity of ketamine.  I find it appropriate to add 1 year to that 5-year starting point.

21.  I am aware that the Court of Appeal has said the fact that a trafficker has two or more types of dangerous drugs can be an aggravating factor that increases the starting point.

22.  Mr Percy for the prosecution has referred me to HKSAR v Wan Lau Mei, CACC 389/2013, referring me specifically to paragraph 41. 

23.  Having read that authority and considered the case here, I have decided that I will not increase the starting point.  I will not take it into account as an aggravating factor.

24.  However, the defendant is pre-warned that this, in the future, can be taken into account as an aggravating factor.

25.  The defendant is entitled to a discount for his plea, a discount of one-third from the starting point of 6 years’ imprisonment.

26.  Therefore, for this charge, the defendant is sentenced to 4 years’ imprisonment.

COURT: Do you understand that sentence?

DEFENDANT: Yes, I do.