HKSAR v. LAU TAK YAM

DCCC 1378/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1378 OF 2011

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Reasons for Sentence

1.  The defendant has been convicted on his own plea of one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, namely 14.5 grammes of ketamine.

2.  Facts admitted by the defendant disclose that at 2000 hours on 10 October 2011, the defendant returned to Hong Kong from China via the Lo Wu Control Point.  He was intercepted at the Green Channel of the Customs Arrival Hall.

3.  He was escorted to Case Processing Room for a search.  When outside Case Processing Room No 260, Customs Arrival Hall, Lo Wu Control Point, the defendant put his left hand into the left front pocket of his jeans and took out 2 plastic bags containing the dangerous drugs the subject matter of the present charge and threw the two plastic bags to the floor.  Powder containing suspected dangerous drugs from the 2 plastic bags scattered on the floor.  The defendant was subdued, arrested and cautioned by Customs Officers, and under caution he admitted that the 2 plastic bags contained ketamine and he was scared and hence threw the 2 plastic bags to the floor.  When interviewed under caution subsequently, he admitted that he had bought the dangerous drugs in question from an unknown person in a disco in Shenzhen in the evening of 9 October 2011 for RMB ¥800.  He claimed the dangerous drugs were for his own consumption and that he consumed 14 grammes of ketamine each week.  The Government Chemist examined the dangerous drugs in question and confirmed that there was a total of 14.5 grammes of ketamine.  At the time of his arrest the defendant had HK$20 and RMB¥10 in cash on him. The estimated street value of the dangerous drugs in question would be about HK$1,610 at that time.

4.  The defendant now admits that he was in possession of the drugs in question for trafficking, although some of them were for his own consumption. Counsel for the Prosecution has indicated that the Prosecution accepts that one-third to half of the dangerous drugs in question were for the defendant’s own consumption.

5.  The defendant has 6 previous court appearances, the last being in 2007 for an offence of trafficking in dangerous drugs, when he was sentenced to 4 years and 2 months’ imprisonment.  His criminal record dates back to 2001.  This is not his first conviction for trafficking in dangerous drugs. He also has a previous conviction in 2001 for possession of dangerous drugs where he was fined $2,000 – that is a spent conviction.  His other convictions relate to gambling.

6.  The antecedent statement discloses that he was educated up to lower secondary level and unemployed at the time of his arrest. He was last discharged from prison on 16 April 2010.  Although the antecedent statement disclosed that he was single, I am told by Defence Counsel that in fact the defendant, who is aged 28 years, is married and has a four year old son.

7.  Defence Counsel has submitted a letter from the defendant expressing his remorse, and explaining that he offended because of his drug addiction and his need to feed his habit. He apologises also to his father and sister, who are in Court today to show the defendant their support, and expresses his regret for what he has done.  His father and sister too have written a letter to the Court, seeking leniency on behalf of the defendant. I have considered the contents of these letters as well as all that has been urged upon me in mitigation by Counsel on behalf of the defendant.

8.  The appropriate sentence for trafficking in 10 to 50 grammes of ketamine  is 4 to 6 years’ imprisonment, pursuant to SJ v. Siew Cheng, CAAR 7/06 and HKSAR v. Wong Yat San, CACC 126/07.

9.  Counsel for the Prosecution indicates that he would accept that one-third to half of the drugs in question could have been for the defendant’s own consumption.

10.  I have considered the authority of SJ v Chan Chun Fai, CAAR 11/2010.  It sets out the appropriate approach for cases where trafficking in dangerous drugs is proved but it is also accepted that the dangerous drugs were wholly or partly for the defendant’s own consumption.

11.  Self-consumption goes to mitigation but does not detract from the nature of the offence and the defendant should be sentenced for the offence of trafficking in dangerous drugs.  If a court addresses and accepts a submission that the drugs were wholly or partly, as in this case, for the defendant’s own consumption, what this will do is entitle the defendant to a lower starting point.  This authority refers to several other similar authorities for guidance.

12.  The sentence follows the quantity of drugs.  That would put the quantity in the defendant’s possession at the material time at the lower end of that spectrum, being 14.5 grammes of ketamine, and would warrant a starting point of 4 1/2 years’ (54 months) imprisonment. I have taken into account that the defendant is a drug abuser and that some of those drugs would have been for his own consumption. There was no direct evidence of sale of any drugs.  I thus reduce the starting point by 25%, which will make a starting point of 40.5 months.

13.  The defendant has pleaded guilty and he is entitled to a discount of one-third to reflect that.  That is the only mitigation of weight before me.

14.  He is therefore sentenced to 27 months’ imprisonment.