DCCC1085/2014

DCCC1085/2014

A A B DCCC 1085/2014 B C C IN THE DISTRICT COURT OF THE D HONG KONG SPECIAL ADMINISTRATIVE REGION D CRIMINAL CASE NO. 1085 OF 2014 E E ----------------------------------- F HKSAR F v. G G AU YEUNG SAI YU ----------------------------------- H H Before: HH Judge Douglas T.H. Yau I Date: 16th March 2015 at 10:36 am I Present: Mr. Chan Pak Kong, Counsel on fiat, for HKSAR J J Ms. Susanna Lee instructed by M/s Au & Associates, K K assigned by DLA, for the Defendant L Offence: Trafficking in a dangerous drug (販運危險藥物) L ---------------------------- M M Reasons for Sentence N ---------------------------- N 1. The defendant pleaded guilty to one count of trafficking in O O dangerous drugs, contrary to section 4(1)(a) and (3) of the P Dangerous Drugs Ordinance, Cap.134. Particulars are that he on 7th P October 2014 at room 8, first floor, New Kings Villa, Yuen Long Q Q unlawfully trafficked in 52.60 grammes of a solid containing 29.22 R grammes of ketamine. R S Summary of facts S T 2. The defendant was intercepted by Sergeant 58923 at around 4:05 T pm on the charge date. Upon search, a re-sealable plastic bag U U CRT21/16.3.2015 DCCC1085/2014/Reasons for Sentence V V  - 2 - A A B containing some white crystalline solids were found from his right B trousers pocket. C C 3. The defendant was then brought to the charge premises where a D D search warrant for the premises was executed. Upon search, a total E E of 36 re-sealable plastic bags, each containing some white F crystalline solids, were found from two cigarette boxes inside a F purple paper bag on the side table next to the bed inside room 8 of G G the premises. H H 4. The defendant was arrested and cautioned. In the cautioned video I I recorded interview held on the same day, the defendant admitted J that he knew the drugs found on his person and inside room 8 were J ketamine; that he was given a mobile phone by someone in order to K K receive orders of drugs from clients; that he would be given around L $1,000 per day for re-selling of the drugs; that he recorded the L transactions on a piece of paper that was found inside room 8; and M M that he was unemployed. N N 5. The defendant had 2 mobile phones with two SIM cards and cash of O O $2,877.60 on his person at the time of his arrest. P P 6. The total estimated value of the ketamine found on the defendant Q and the premises is around $6,259.40. Q R R 7. At paragraph 8 of the summary of facts that the defendant admitted S S to in court after it was read out to him subsequent to his guilty plea, T it is stated that the defendant possessed the ketamine for the purpose T of unlawful trafficking at the material times. U U CRT21/16.3.2015 DCCC1085/2014/Reasons for Sentence V V  - 3 - A A B B Previous convictions C C 8. The defendant was convicted on 23rd April 2009 for possession of D dangerous drugs and was sentenced to 12 months’ probation. This D is a spent conviction and as such, pursuant to section 2(1)(i) of the E E Rehabilitation of Offenders Ordinance, Cap.297, this evidence is F inadmissible to show that the defendant was so convicted in Hong F Kong. The defendant shall be sentenced as if he is of previously G G clear record. H H Mitigation I I 9. The defendant is 24, born in Hong Kong, educated up to form 5 J level and single. He was unemployed at the time of his arrest. J Before that, he worked as a transportation worker earning $12,000 a K K month. I was also told that he used to work as a part time warehouse L worker as well. L M M 10. Two mitigation letters and one medical appointment slip were N handed up. The defendant explains through his letter how he had N grown up in a single parent family, how his father suffers from long O O term illness and how he committed the offence hoping to get some P money to lessen his mother’s burden. Madam Ma in her own letter P pleads with the court to deal with his son leniently. Q Q R Sentencing tariff R 11. The guidelines for sentencing in ketamine trafficking cases are S S found in the case of Secretary for Justice v Hii Siew Cheng (許守城) T [2009] 1 HKLRD 1, CAAR7/2006. The tariff for sentence after trial T U U CRT21/16.3.2015 DCCC1085/2014/Reasons for Sentence V V  - 4 - A A B for traffickers in ketamine of between 10 to 50 grammes is that of 4 B to 6 years’ imprisonment. Ms. Lee for the defendant confirmed that C C she had explained to the defendant the likely sentence he will be D facing based on the existing sentencing guidelines. D E E Sentence F 12. The maximum sentence for trafficking in dangerous drugs is that of F life imprisonment. G G H 13. Although the defendant is 24 years old, he cannot be regarded as of H extreme youth. In serious cases such as the present one, his I I relatively young age is not a mitigating factor. J J 14. Likewise the defendant’s personal circumstances. Save for K K exceptional circumstances, the defendant’s personal circumstances L would not amount to a mitigating factor. I find that the defendant’s L decision to traffic in dangerous drugs in order to earn some quick M M money so that he could ease his mother’s financial burden cannot be N a mitigating factor. People in similar situations where they are N struggling financially must be deterred from resorting to criminal O O activities to solve their problems; and those who refuse to give in to P temptations must not be made to feel that they had made the wrong P choice to stay on the right side of the law. Q Q R 15. In relation to the defendant’s clear record, such as it is, I find that R there is no evidence of positive good character on the defendant’s S S part and therefore any discount merited for his clear record is T T U U CRT21/16.3.2015 DCCC1085/2014/Reasons for Sentence V V  - 5 - A A B embraced by the usual one-third discount granted upon his guilty B plea. C C 16. Applying the sentencing guidelines, I find that an appropriate D D starting point is that of 57 months’ imprisonment. I find that there E E are no aggravating factors that warranted an increase in this F sentence. I find that the only mitigating factor is the defendant’s F guilty plea. The defendant is therefore sentenced to 38 months’ G G imprisonment after the one-third discount for his guilty plea. H H I I J (Douglas T.H .Yau) J District Judge K K L L M M N N O O P P Q Q R R S S T T U U CRT21/16.3.2015 DCCC1085/2014/Reasons for Sentence V V