HKSAR v. LAU CHUN HEI

DCCC 2/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 2 OF 2017

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Reasons for Sentence

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1.  The defendant has pleaded guilty to a single offence of trafficking in a dangerous drug.

2.  The totals of drug concerned or the narcotic content of the drug concerned is 39.13 grammes of ketamine and 6.88 grammes of cocaine.

3.  The defendant was arrested on 3 October 2016 during a police patrol.  This was a stop-and-search approach.  The drugs were found in various bags.  There were 9 plastic bags containing 29.5 grammes of the narcotic ketamine; 8 plastic bags containing 9.63 grammes of ketamine; and a further 72 plastic bags containing 6.88 grammes of cocaine.

4.  On arrest, the defendant immediately said he was delivering the dangerous drugs for some other person.  There was a further video-recorded interview where the defendant elaborated that under caution. The person who had instructed him to deliver the dangerous drugs was a person named as “KK”.  The defendant was to deliver dangerous drugs for a reward of $1,000 a day.  He had been given the drugs in question outside a park at Ngau Tau Kok MTR.  He said it was the first time he had actually been involved in carrying dangerous drugs.

5.  The defendant admits that he was in possession of the dangerous drugs, ketamine and cocaine, for the purpose of unlawful trafficking in them. 

6.  The defendant’s personal antecedents show that he is 18 years old, educated up to Secondary 2 level in Hong Kong.  At the time of his arrest he had a job as a waiter.  He has -- his mother and father, I understand, are separated.

7.  The defendant has a number of previous convictions for a person so young, a total of 8 previous recorded convictions. For offences of theft and burglary, he was placed on probation for 18 months in 2012.  For breaching probation and committing a further case of conspiracy to rob, he was sent to a reformatory school.  He breached the rules of the reformatory school and was sent to a rehabilitation centre.  Finally for failing to return to the rehabilitation centre, he was sent to a detention centre.  So with the exception of training centre, the defendant has now been through all the juvenile forms of detention.

8.  As far as the defendant’s mitigation is concerned, it is advanced that he has pleaded guilty and has shown remorse.  He has indicated from his time of arrest his involvement in this offence and has not tried to find his way out of it. 

9.  As far as sentencing is concerned, these -- cases involving trafficking in dangerous drugs are largely determined by guideline sentencing.  In the defendant’s case, we are dealing with 39.13 grammes of ketamine which places the amount of ketamine in the range between 10 to 50 grammes which should be a sentence between 4 to 6 years’ imprisonment. There are also a further 6.88 grammes of cocaine.  Applying the operative guideline in the case of Lau Tak Ming, that puts that in the range of up to 10 grammes which should be a sentence between 2 to 5 years.

10.  The drugs in this case are what would be described as I think cocktail drugs.   That is a mixture of drugs with different sentencing guideline that was applicable to them.  Courts have in the past approached this question or this issue in two ways.  One was called the individual approach and the other is called the combined approach.  I do not propose to outline the process in detail, suffice to say that the combined approach would ask the court to take the quantity of the most serious drug in terms of sentencing as the operative guideline and then the total of drugs.

11.  Of course in this case the majority drug is -- by far the majority drug is the drug ketamine, there is a small but still substantial quantity of the drug cocaine.  Although the sentencing of cocaine would be generally at a higher level than the drug ketamine, I think the -- having regard to the large disparity between the quantities, the guideline for ketamine should be the operative one to employ in this case.

12.  Adding both drugs together, the whole narcotic content to be dealt with today is 46.10 grammes.  Applying the guideline for ketamine, that would put it close to the higher point of the guideline, 4 to 6 years.  So that would be the region in which the starting point for sentence would normally be determined.   

13.  Of course there is another factor here and that is the defendant’s young age.  The defendant’s youth is not sufficient for it to be an exceptional circumstance to permit me to approach the case in a radically different manner, but it does permit me some flexibility in determining the starting point.

14.  The defendant is no stranger to custodial sentencing, and the fact -- from 2013 onwards he has been subject to some form of custodial sentence for the majority of his time.  So the position would be that this defendant would spend most of his youth, teenage and young adult years, as a prisoner.  Whether this approach will be successful will remain to be seen. 

15.  Taking all these facts into account especially the fact that the defendant is a young offender, and were it not for the high quantity of drugs involved here, I may well take another approach of sentencing. I will take a starting point for sentence that to a certain extent reflects that I am dealing with a young person but still remaining within the operative guidelines.

16.  The starting point for sentence would be one of 63 months’ imprisonment.  After deduction of one-third for the defendant’s plea of guilty, that would lead to a sentence of 42 months’ imprisonment for this offence.  That will be the sentence accordingly.