HKSAR v. LUI YIU SAN

DCCC 902/2022

[2023] HKDC 1331

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 902 OF 2022

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REASONS FOR SENTENCE

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1.  The defendant is convicted on his own plea and agreement to amended Summary of Facts for a charge of trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134.

Facts

2.  At around 1741 hours on 14 June 2022, police saw the defendant coming out of Room 3902 of Hoi Shing House.  The defendant was intercepted and searched. Upon search, one plastic bag containing 0.98 gramme of a solid containing 0.76 gramme of ketamine was found inside the left front pocket of his jacket.  A red paper bag containing one plastic bag containing 30 plastic bags containing a total of 4.62 grammes of a solid containing 4.23 grammes of cocaine was found inside the right front pocket of the defendant’s jacket. 

3.  The defendant was arrested for trafficking in dangerous drugs.  Under caution, he admitted that he received $600 to deliver these drugs to another. 

4.  At the time of arrest, cash of $2,767 as well as 2 mobile phones were found, amongst other things, on the defendant. 

5.  Estimated street value for the drugs seized was around $6,799.62. 

6.  At the material times, the defendant was in possession of the seized drugs for the purpose of unlawful trafficking. 

Criminal Record

7.  The defendant has a clear record. 

Mitigation

8.  Defence counsel submitted that the defendant was very young at the time of the offence and that he was fully co-operative with the police after his arrest.  It was said that he committed the offence for money reward and that the reward was a minimal sum. 

9.  As for the aggravating feature of trafficking in more than one type of drugs, he asked this court to enhance the sentencing starting point by 1 month or 2 months’ imprisonment.  He urged this court to give the defendant sentencing discount by reason of his guilty plea and clear record. 

10.  It was said that the defendant was unemployed at the time and that he used to have an irregular employment after he left school about 1½ years ago prior to the time of arrest. 

11.  Defence counsel handed in certificate of commendation from his schools as well as 3 mitigation letters from his relatives for the consideration of the court. 

12.  Defence counsel also conceded that for trafficking in cocaine, the court would use the same sentencing guideline as that for trafficking in heroin, and that following the case of HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437, trafficking for up to 10 grammes of cocaine is 2 to 5 years’ imprisonment.

13.  For trafficking in ketamine, the sentence for trafficking up to 1 gramme of ketamine is within the court’s discretion. 

Discussion

14.  Before sentencing, this court has carefully considered all that was advanced on behalf of the defendant, including the mitigation letters submitted and the commendation certificates from schools. 

15.  On conviction upon indictment of this charge, the maximum sentence is a fine of $5 million and imprisonment for life. 

16.  Trafficking in dangerous drugs is a very serious offence and in usual circumstances, it is well established that personal background and circumstances is not considered a valid mitigating factor. 

17.  The drugs involved in this case is 4.23 grammes of cocaine and 0.76 gramme of ketamine. 

18.  For trafficking 4.23 grammes of cocaine, following the authority of Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 in adopting the guideline in R v Lau Tak Ming [1990] 2 HKLR 370, the appropriate sentencing starting point is 39 months and 6 days’ imprisonment. 

19.  For trafficking 0.76 gramme of ketamine, following the authority of Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, the sentencing starting point is within the court’s discretion as conceded by defence counsel.  This court considers that 3 months’ imprisonment is the appropriate sentencing starting point. 

20.  If all the drugs trafficked is cocaine, ie 4.99 grammes of cocaine, the sentencing starting point would be 41 months and 27 days’ imprisonment.  The court considers that the appropriate sentencing starting point for all the drugs seized in this case is 40 months’ imprisonment. 

21.  It is well established that as there are more than one type of drugs involved, the same constitutes an aggravating feature in sentencing for which the sentencing starting point is enhanced.  In this case, the court will enhance the same by 2 months, taking the sentencing starting point to 42 months’ imprisonment. 

22.  The defendant has pleaded guilty, which is the most valid mitigating factor.  He is therefore entitled to full one-third sentencing discount. 

23.  It is well established that committing the offence for a monetary reward is not a valid mitigating factor.  Further, it is well established by case law that the fact the defendant has a clear record has already been subsumed in the one-third sentencing discount. 

24.  Although urine test report suggested the defendant was a cocaine user, defence counsel confirmed that all the drugs seized were for trafficking. 

25.  Accordingly, the defendant is sentenced to 28 months’ imprisonment.