HKSAR v. LAU YU MING AND ANOTHER

Reasons for Sentence

1.  There are two defendants in this case.  D1 pleaded guilty to one charge of possession of dangerous drug (charge 1), and D2 pleaded guilty to one charge of trafficking in dangerous drug (charge 2). 

2.  In sentencing I take into account the whole circumstances of the case including its nature and facts, in particular, the nature and quantity of the dangerous drugs involved, personal background of the defendants, mitigation put forward on their behalf and have had regard to sentencing precedents.

3.  Facts of the case are simple.  Some police officers on patrol noticed a car parked at Fei Ngo Shan Road.  Feeling suspicious they conducted a check.  D2 was sitting in the driver’s seat and D1 sitting in the passenger seat next to him.  D1 was the registered owner of the car.  Upon search, a plastic bag containing 2.37 grammes of powder, containing 1.83 grammes of ketamine was found inside the right trouser pocket of D1.  Under caution he admitted to have possession of the dangerous drug for his own consumption. 

4.  The car was searched and five plastic bags containing a total 34.87 grammes of powder, containing 27.39 grammes of ketamine as well as 26 bags containing a total of 103.38 grammes of cannabis in herbal form were found in the car. 

5.  Under caution D2 admitted that he was helping someone to convey dangerous drugs for a reward of $1,000 because he could not find a job.  He said D1 had lent the car to him since October 2008.  He said he had not received the reward yet.

6.  D1 is 24 years of age.  He received education up to Form 3 and is a packing worker of a magazine company.  He is not a first time offender.  On 11 May 2001, he was convicted of an offence of theft and was fined $500 for this case of theft by finding. 

7.  In mitigation, learned counsel for the defence told the court that D1 started to consume dangerous drug under the undue influence of D2.  Whilst this assertion is disputed by D2 and this matter may be relevant, in particular, in the assessment of the degree of remorsefulness on the part of D1, I do not consider it is so material and significant that a fact finding exercise should be conducted. 

8.  I was told that D1 has the full support of his family.  He has been responsible and hard working in his work.  He has started to go to church and is determined to turn over a new leaf. 

9.  Before sentence I have considered probation officer and community service order reports.  The reports reveal that for a long time the academic performance of D1 was far from satisfactory.  Unable to get a Form 4 school place he enrolled in a computer course run by the Institute of Vocational Education.  He, however, quitted after one year for lack of interest and began to work. 

10.  He changed jobs from time to time and did not have a stable employment pattern.  That said, he has been in his present employment since July 2008.  His supervisors are satisfied with his job performance and are willing to continue to employ him so long as he is able to carry on. 

11.  He has become a church goer.  He demonstrated his remorse in church.  According to him the car in question in fact belonged to D2, he became the registered owner upon his request since he met the criteria for a lower insurance fee as he had obtained a driving licence for three years.  The papers of the car and the ignition key were kept by D2. 

12.  He claimed he had only tried ketamine once before.  The dangerous drugs for that occasion, as well as for the present occasion, were both provided for by D2.

13.  It is confirmed in the DATC reports that D1 is not drug dependant.  Learned counsel stressed that it showed the determination of D1 to turn over a new leaf and that he had not touch any dangerous drug after his arrest in December last year. 

14.  The probation officer is of the opinion that D1’s future rehabilitation in the community will be optimistic.  A community service order of a medium duration with a special condition is recommended. 

15.  D1 was in possession of ketamine of the narcotic content of 1.83 grammes.  The harmful effect of the dangerous drugs to both the community and individuals were elaborated in the case of SJ v HII Siew-cheng, CAAR7/2006.  It is plain that the court has since taken a more serious view upon this type of dangerous drug. 

16.  Having carefully considered the whole circumstances pertaining to the case of D1, I am of the view that an imprisonment term may not be absolutely necessary and appropriate for him.  The quantity of dangerous drug he possessed was low.  There existed little latent risk. 

17.  Though not a first time offender, the offence he had previously committed was not drug related.  It was a case of theft committed 7 years ago when he was 16 years old.  Judging from the sentence it appears that it was a relatively minor matter.  He is not drug dependant.  I am satisfied that he has genuine remorse. 

18.  He is now in relatively stable employment.  His job performance was satisfactory and his employer is prepared to retain him despite knowledge of his contravention of the law. 

19.  In all the circumstances, I agree with the opinion of the probation officer that D1 might stand a good chance to rehabilitate in the community.  It is in the best interest of the community and the defendant himself to have his rehabilitation.  I share the view of the probation officer that community service order is an effective means to achieve this.  I order D1 to perform 160 hours of unpaid work under a community service order with a special condition that he shall submit urine samples for examination at a specified time as directed by the probation officer. 

20.  I have already explained to D1 the nature of a Community Service Order and the consequence of unsatisfactory performance, breach of the order or its conditions and committing of further offence. 

21.  I ask for a progress report in four months’ time. 

Hearing of the report will be at 9.30 am on 21 September this year.  D1 must attend the hearing. 

22.  D2 is 21 years of age.  He received education up to Form 4 and has worked as a transportation worker, waiter and worker in the airport.  He is a first time offender. 

23.  Background report revealed that D2 enjoyed little paternal guidance since his father was engaged heavily in his effort of building up his manufacturing business in the Mainland.  His mother had initially been able to take good care of D2 and the academic performance of D2 was outstanding when he was studying in primary school. 

24.  However, in January 2006 his father committed suicide following his business failure and owing heavy debt to loan shark.  Owing to grief and commitment to repay the loan, supervision of his mother and elder siblings upon D2 became lax.  He turned wayward and began to abuse drugs.  He committed the present offence for easy money and his eagerness to ease the family’s financial burden. 

25.  In mitigation counsel for the defence urged me to take into account the background of D2 leading to the committing of the offence.  This I have done.  I have borne in mind everything mentioned in the background report and said by learned defence counsel.  I have also had regard to the letters submitted. 

26.  I was told that D2 is now remorseful and learned counsel stressed that D2 confessed and pleaded guilty even though the dangerous drugs were not found on his person.  I am satisfied that D2 is now remorseful.  I have already mentioned my view as to the dispute of certain facts between the two defendants.

27.  The offence was committed on 22 December 2008, the case of SJ v HII Siew-cheng, CAAR7/2006 is applicable for sentencing.  In that case the Court of Appeal indicated that if the quantity of ketamine trafficked was between 10 to 50 grammes the sentence should be 4 to 6 years’ imprisonment.  In the present case I see no reason to depart from the tariff. 

28.  For trafficking in cannabis, it was held in the case of R v TUEN Shui-ming, AR 12/1994 that the proposed sentence for trafficking in cannabis resin of a quantity under 2000 grammes is an imprisonment term up to 16 months.  The cannabis in this case was in herbal form.  A downward adjustment in sentence is appropriate. 

29.  D2 was trafficking in two types of dangerous drug.  In consideration I have had regard to the case of HKSAR v Chan Yat Ming, CACC455/2006. 

30.  In all the circumstances an immediate custodial sentence is appropriate and I will adopt a starting point of 4½ years.  Despite I was told that D2 was a drug abuser, in view of the sentence I am to impose, there are mechanism and sufficient facilities in CSD to assist him to get rid of the vice habit when he is serving the term. 

31.  D2 pleaded guilty.  He is entitled to a one-third discount.  Having consider the whole circumstances, I am of the view that this is the extent of discount D2 is entitled to in this case.  I therefore sentence D2 to 36 months’ imprisonment for charge 2.