HKSAR v. CHEN ZHIYONG

DCCC1342/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1342 OF 2010

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Reasons for Sentence

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1.  The Defendant pleaded guilty to one charge of trafficking in a dangerous drug, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

2.  Briefly, the facts were that during an anti-narcotics patrol conducted by the Police in the vicinity of Argyle Centre Phase 1, Kowloon, the Defendant was found acting furtively and was therefore stopped for a search. As a result, the drugs particularized in the charge, that is, a total of 20.21 grammes of a powder containing 13.17 grammes of ketamine, as well as five small transparent re-sealable plastic bags with a total of 1.38 grammes of a solid containing 1.13 grammes of cocaine, were found hidden in the rear right pocket of the Defendant’s pair of jeans.

3.  The Defendant is now 17 years of age and has a clear record. He was born in the Mainland and came to settle in Hong Kong in November 2007. He is the eldest son of the family. His father is a delivery worker while his mother is a part-time waitress. The Defendant was educated up to Primary 6 when he was in the Mainland. He continued his education to Form 1 after coming to Hong Kong but he had difficulties adapting to the Hong Kong system. He quitted school in December 2009. Afterwards, the Defendant had worked as a kitchen assistant for a very brief period. He then remained idle. The Defendant has diabetes and epilepsy and requires regular medication.

4.  In mitigation, it was said that after the Defendant had quitted school, he then mingled with some undesirable peers and he was induced into taking ketamine in August 2010. Later on, his peers persuaded him to engage in drug trafficking as it would help him earn some quick money. The Defendant’s mother has written to beg, on the Defendant’s behalf, for leniency, saying that the Defendant is generally a good boy and he committed the present offence as he lacked parental discipline.

5.  I adjourned sentence to today in order to obtain a background report and a Training Centre Report on the Defendant. Two medical reports on the Defendant’s condition are now also available to me. From the information gathered, it would appear that the Defendant had difficulties continuing his studies in Hong Kong. Lacking interest in school and having mingled with some dubious peers, he then started his wayward life which included taking ketamine, and later engaging himself in drug trafficking.

6.  The medical reports disclosed that although the Defendant requires insulin injection three times a day and requires regular medication to control his epilepsy, his condition is stable at present.

7.  The Court has said time and again that there is a need for deterrence when dealing with offences like trafficking in a dangerous drug and that age carries little weight in mitigation.

8.  The guidelines for trafficking in ketamine were laid down in SJ v Hii Siew Cheng ＆Another [2009] 1 HKLRD 1. For trafficking in 10 to 50 grammes of ketamine, the term of imprisonment should be between 4 and 6 years. In the present case, since 13.17 grammes of ketamine were involved, I consider a starting point of 4 years to be appropriate if a term of imprisonment were to be imposed.

9.  As for cocaine, in AG v Pedro Nel Rojas [1994] 1 HKC 342, it was held that the guidelines for heroin trafficking in R v Lau Tak Ming [1990] 2 HKLR 370 were also applicable to the sentencing of cocaine trafficking. In the case of Lau Tak Ming, trafficking of up to 10 grammes of heroin will attract a term of imprisonment of between 2 to 5 years. For the 1.13 grammes of cocaine involved in this case, I consider a starting point of 2 years to be appropriate.

10.  It has been established that where multiple drugs are involved, the sentencing court can adopt one of the two sentencing approaches, that is, the “individual approach” and the “combined approach”. In HKSAR v Ko Ka Hing [2009] 4 HKLRD 856, the Court of Appeal further observed that where “cocktail drugs” or “designer drugs” with a mixture of different types of dangerous drugs are involved, the “combined approach” would be more appropriate.

11.  In this case, as the ketamine and the cocaine were separately packed and were not mixed together, I consider the “individual approach” to be more appropriate if a term of imprisonment were to be worked out. Now, if one were to simply add together the two starting points which I mentioned above, one would arrive at an overall starting point of 6 years in this case but this would be excessive for the drugs involved here. Therefore, I would set the overall starting point at 5 years (60 months) if a term of imprisonment were to be imposed. However, for the reasons stated below, I am not going to impose an imprisonment term in this case.

12.  Firstly, although the offence to which the Defendant pleaded guilty is an excepted offence in Schedule 3 of the Criminal Procedure Ordinance, Cap. 221, and that section 109A is not applicable, the Court would still consider how best it is to deal with him, given the nature and circumstances of the offence, the interest of the community, the Defendant’s character and previous conduct, etc.

13.  I am also aware that, in Wong Chun Cheong and HKSAR (2001) 4 HKCFAR 12, the Court of Final Appeal examined the circumstances under which a training centre order is to be imposed and what the relevant considerations are.

14.  In this case, after considering all the mitigating factors put forth, in particular, the Defendant’s clear record, his background, and his relatively young age, and based on the information available, I have no doubt that the Defendant is susceptible to peer influence and he lacks the ability to resist temptation and to observe discipline. If he were to be left on his own, I reckon there is a high likelihood that he would go down a track which has no return. In the interest of the community and for crime prevention, it is better that while it might still be possible to guide him back and to have him turned into a useful member of the community that this chance be seized and acted upon. I agree with the reporting officer that a period of disciplinary training coupled with statutory supervision is beneficial to the Defendant. Such training and supervision would not be available if a term of imprisonment were to be imposed.

15.  After careful consideration, I take the view that a training centre order is the most appropriate method to deal with the Defendant. I therefore make a training centre order in respect of the charge to which the Defendant pleaded guilty.