HKSAR v. LO KA YU

DCCC 579/2018

[2019] HKDC 80

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 579 OF 2018

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one charge of trafficking in dangerous drugs. The remaining charges of possession of apparatuses fit and intended for the inhalation of a dangerous drug, and possession of a dangerous drug were ordered to be kept on file, not to be proceeded with against the defendant without the leave of court.

Facts

2.  The defendant was intercepted by Customs officers at the Customs Departure Hall of the Hong Kong Macau Ferry Terminal at around 11:36 pm on 25 March 2018.

3.  After receiving a positive result for ketamine from an ion scan conducted on the defendant’s clutch bag, he was escorted to a search room for a body search.

4.  Inside the clutch bag were found (a) 1 transparent re-sealable plastic bag containing 31.2g of a solid containing 29.7g of cocaine, wrapped inside a tissue paper; and (b) a HK$100 bank note folded into a packet with 0.07g of a solid containing cocaine and one transparent re-sealable plastic bag containing 0.02g of a powder containing ketamine inside.  Only the 31.2g solid and the 0.02g of powder are the subject matters of the charge.

5.  The defendant had on him a Turbojet ferry ticket, leaving at 11:50 pm that night for Macau, 2 mobile phones, and cash of HK$769.10 and RMB$5.5.

6.  The defendant was arrested.  Under caution, he claimed that the substances found inside his clutch bag were cocaine and ketamine and they were all for his self-consumption.  He bought the drugs from an unknown person in Diamond Hill.  He paid HK$10,000 for the cocaine inside the tissue paper, $200 for the cocaine inside the banknote and $200 for the ketamine.

7.  The total estimated street value of the dangerous drugs as at March 2018 was $31,560.

Previous convictions

8.  The defendant has 3 previous criminal convictions from 2 court appearances.  They were all for possession of dangerous drugs.  The first conviction is a spent conviction.  The second and third convictions are both dated 3 June 2015, when he was sentenced to detention in the Drug Addiction Treatment Centre.  He was last released in November 2015.

9.  Given the different nature of these conviction records and given the lapse of time, I will not enhance the defendant’s sentence on the basis of him being a repeated offender.

Mitigation

10.  The defendant is going to be 27 in a few weeks’ time.  He was born in Hong Kong and educated up to Form 3 level.  He was unemployed at the time of arrest.  He worked as a cook between February and August 2017, earning around $17,000 per month.

11.  The defendant claims that he began using drug at the age of 13.  He inhaled ketamine once a day, cocaine twice a week, spending $1,000 and $1,200 respectively.

12.  The defendant’s urine tested positive for cocaine when admitted to the Lai Chi Kok Reception Centre on 27 March 2018.

13.  After clarification, Ms Cheng for the defendant confirmed that the defendant does not seek any discount in sentence based on the ground of some of the drugs being for self-consumption.

Sentencing

14.  The maximum sentence on conviction upon indictment for the offence of trafficking in a dangerous drug is a fine of $5 million and imprisonment for life.

15.  Given the fact that the quantity of ketamine found inside the 0.02g powder particularized in the charge is so minute that it cannot be set out in the Government Chemist Certificate, I find that the defendant should only be sentenced on the basis of trafficking in the 29.7g of cocaine.

16.  For the same reason, despite the fact that trafficking in a variety of drugs is an aggravating factor, I will not enhance the defendant’s sentence on this basis.

17.  The sentencing tariff for trafficking in 10 to 50g of cocaine is that of 5 to 8 years[1] imprisonment.  For the narcotic content of 29.7g of cocaine, an arithmetical application of the tariff would result in a sentence of slightly more than 77 months’ imprisonment.  I will adopt a starting point of 77 months’ imprisonment.

Aggravating factor

18.  The defendant was in possession of a ticket for a ferry that was due to leave shortly.  The defendant was intercepted while going through Customs in the Departure Hall.  The only reasonable inference is that he intended to bring the drugs he had on him out of Hong Kong.  In fact, this is what was put forward in mitigation on his behalf as well, in accordance with his instructions to counsel.

19.  It is trite law that the taking of drugs out of or into Hong Kong is an aggravating factor when sentencing for the offence of trafficking.

20.  For this aggravating factor, I will enhance the sentence by 4 months, leading to the enhanced sentence of 81 months’ imprisonment.

21.  Having had the opportunity to go through the well-prepared written mitigation by Ms Cheng, I am of the view that nothing in the defendant’s personal circumstances would warrant a departure from the tariff sentence or a further discount in sentence.

22.  The full one-third discount is granted based on the defendant’s timely guilty plea, resulting in the final sentence of 54 months’ imprisonment.