HKSAR v. HO YAN LOK

DCCC 318/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 318 OF 2014

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REASONS FOR SENTENCE

1.  Ho Yan Lok you have pleaded guilty to one charge of trafficking in 47.03 grammes of a powder containing 36.64 grammes of ketamine and 1.16 grammes of a solid containing 0.90 gramme of cocaine, contrary to section 4 of the Dangerous Drugs Ordinance, Chapter 134.

2.  In summary at around 1:05 a.m. on the 25 February this year the police intercepted you at the junction of Ko Chiu Road and Cha Kwo Ling Road in Kwun Tong.  On a search of your bag the police found a total of 16 plastic bags containing the ketamine and cocaine together with $12,372 and three mobile phones. 

3.  In passing sentence I have carefully considered everything said on your behalf by Mr Chan, in particular that you have serious physical disability having been born with Cerebral Palsy.  I have read all the letters of mitigation in which everyone speaks of how you have overcome the hardships of your disability. 

4.  Notwithstanding your disability you have studied and worked hard.  I am impressed with your achievements.  Miss Tam the occupational therapist at the Kennedy Centre, where you studied when you were young, treats you as if you were her son.  Miss Tam describes how you studied diligently and at the same time helped others in the centre.  You continued your studies at the Vocational Training Council and graduated with a Higher Diploma in web design. 

5.  After completing your studies you have begun your working life.  Mr Jim Tin Fu the Chief Executive of Genesis Real Estate Co Ltd speaks very highly of your work performance such that he regards you as “truly one in a million” who does hard work the old fashioned way and not simply for instant return. 

6.  Your achievements are not limited to study and work.  In 2011 you represented Hong Kong in the wheelchair basketball team at the 8th National Games of Disabled Persons in China. 

7.  Having worked so hard to overcome your disability it is therefore truly sad to see you before the court on such a serious charge.  Mr Chan explains that in the middle of 2013 you foolishly turned to drugs and began to take cocaine.  This was at a time when you felt the pressure of working hard so you did not fall behind; when your family were in debt; and that due to your declining physical health you lost your first team place in the Hong Kong wheelchair basketball team.  As a consequence you will not be representing Hong Kong in the Asian Games which I can understand must be a very big disappointment to you. 

8.  I am told you consumed cocaine 2-3 times every 2 months.   Mr Chan says that you stupidly treated those who gave you drugs as your friends and without monetary reward took the drugs from Mongkok to Kwun Tong.  The cocaine was for your own consumption and had been given to you free of charge for delivering the drugs.

9.  Mr Swainston for the prosecution takes a neutral stance whether the cocaine was in fact for your own use.  Having carefully considered all the circumstances, in particular that in comparison to the quantity of ketamine the cocaine was a much smaller quantity, I am prepared to accept that the cocaine may have been for your own consumption.

Starting point

10.  In Secretary for Justice v Hii Siew Cheng[2009] 1 HKLRD 1 the Court of Appeal laid down guidelines for trafficking in ketamine.  Where the narcotic content is between 10 and 50 grammes sentence after trial falls within the range of 4-6 years imprisonment.

11.  Taking into account you have not been involved in trafficking before I take a starting point of 5 years imprisonment for trafficking in 36.64 grammes of ketamine. 

Cocaine

12.  Mr Chan submits that the cocaine should be subsumed within the starting point for the ketamine.  I disagree.  Where one of the drugs is wholly for own use the approach to be taken is that found in HKSAR v To Chu Kong CACC 350/2013. 

13.  Taking into account the cocaine was carried on the street in the early hours of the morning; the packaging of the cocaine in 4 plastic bags;  possession of drugs carries a sentence in any event; and the latent risk factor, I am satisfied an additional 3 months imprisonment is appropriate.  This makes a total starting point of 5 years and 3 months imprisonment.  Giving you full credit for your plea of guilty reduces the sentence to 3 years and 6 months imprisonment. 

Disability

14.  Mr Chan submits because of your disability a lower starting point of 4 years is appropriate.  The courts have repeatedly said that offences of trafficking are offences of the utmost gravity which may result in mitigating factors having little weight.  Silke VP in R v Lau Tak Ming [1990] 2 HKLR 370 put it this way:

“It must be borne in mind that these are offences of the utmost gravity which may well result in mitigating factors which, for less serious offences could lead to a discount, having little weight. By this we mean age and disability - though extreme youth may call for special consideration. Drug dealers are notorious for attempting to elicit sympathy from the Courts for their middlemen by the use of the blind, the maimed, the halt, the young and the aged in the carrying out of their nefarious trade.”

15.  Whilst a just sentence must balance the public interest with that of the personal circumstances of the offenderthe courts have nevertheless repeated that in serious drug trafficking cases no special consideration is to be given (see for example HKSAR v Tsang Wai Kei CACC 452/2002 and HKSAR v Lkhaijav Bayanmunkh CACC 320/2011).  I note both these cases involved very substantial quantities of drugs. 

16.  Medical facilities are available in prisons for disabled persons.  This was the subject of discussion in HKSAR v Cheng Ho Chow CACC 111/2009 where a report was prepared by the Correctional Services Department on the medical facilities available in the prisons.  Nothing has been said by Mr Chan to suggest whilst you have been on remand the Correctional Services Department have not been able to provide you with adequate care.

17.  Whilst the leeway for personalised sentencing in drug trafficking cases is greatly restricted I am satisfied I can properly take into account as mitigating factors your hard work in overcoming your disability; that you have represented Hong Kong as a disabled sportsman and to a lesser degree the undoubted difficulties and hardship you will suffer in prison.  I am satisfied I can therefore further reduce the sentence by 8 months.  You are convicted and sentenced to 2 years and 10 months imprisonment.