HKSAR v. LAU KIT WAI

HCCC 43/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 43 OF 2017

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: On 13 February 2017, the defendant, now aged 31, pleaded guilty to trafficking in dangerous drugs and he has confirmed that plea today.

In short, he was arrested on 14 June last year as he emerged from a fire exit door on the same floor as a flat in Tai Kok Tsui, rented by a friend of his. This flat he sometimes frequented. When he was searched, a very small quantity of cocaine in two bags was found on him. The flat was then searched and cocaine and ketamine were found in a drawer to which the defendant had the keys.

On analysis, the drugs were found to be 29.09 grammes of cocaine in a solid weighing 33.82 grammes which was later valued at $39,705, and 81.49 grammes of ketamine in a powder weighing 120.77 grammes, valued at $26,086.

The sentencing guidelines in The Queen v Lau Tak Ming & Others [1990] 2 HKLR 370 which now apply not only to heroin but to cocaine as well, would seem to indicate a sentence of 6½ years’ imprisonment after trial as this quantity comes within the band of 10 to 50 grammes, attracting a sentence of between 5 and 8 years’ imprisonment.

Ketamine is treated as a less serious form of drug than cocaine and the guidelines for sentence in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1 would seem to indicate a sentence of 6 years and 4 months’ imprisonment for 81.49 grammes of ketamine. In other words, almost the same level of sentence as for 29 grammes of cocaine.

Accordingly, by adopting the reasoning in HKSAR v Chan Yuk Leong, CACC 318/2013, if the total quantity of cocaine in this case had been 58 grammes, that is 29 grammes times 2, in my view, the sentencing guideline for such an amount would be 8 years and 3 months after trial.

However, there two aggravating factors here which also need to be considered. The first is that the defendant was trafficking in two types of drugs which gave him a wider market than if he had only been dealing in one kind.

The other factor is obviously more important. It is that the defendant has a previous conviction, not only for possessing ketamine but for trafficking in ketamine, and it is perfectly apparent that he learned nothing from his experience. His sentence was 5 years and 4 months’ imprisonment for the trafficking which was imposed on 13 April 2011.

Some time later, there was another sentence for a completely different kind of offence where the court imposed a 13-month sentence, making 2 months of that sentence concurrent with the trafficking sentence. What all of that means is that he was not released until 20 March 2015, just over a year before this offence was committed.

I propose therefore to enhance the starting point for sentence which I have taken by 6 months to take those factors into account. That gives a starting point, so far, of 8 years and 9 months.

I accept that there is some mitigation, not a great deal because we are dealing here with a large quantity of drugs, but some mitigation in regard to the defendant himself being a user of drugs. I do not believe that more than a relatively small proportion would have been for self-consumption, however. Nevertheless, to ensure that he is not dealt with unfairly, I am prepared to make some small downward adjustment to his sentence on that count and I propose to take 6 months from the starting point of 8 years and 9 months, leaving a balance of 8 years and 3 months, after trial.

You have very sensibly pleaded guilty at the earliest opportunity to trafficking and as you have just heard me say, if you had been convicted by a jury after a trial, you would have received a sentence of 8 years and 3 months’ imprisonment. Now, as it is, I am going to give you full credit for your guilty plea and therefore your sentence will be 5½ years’ imprisonment.

I am aware of what has happened today and the statement you have made. There is no action I can take about that, but if, in the future, it turns out that that statement proves to be useful to the prosecution, then you can take that to the Court of Appeal and ask for a further reduction in sentence. Ms Tsang will no doubt explain to you what is involved but, in short, it has to be shown that you have been of use to the prosecution.

That is all. Your sentence is 5½ years.