HKSAR v. CHEUNG HO LUN

DCCC 116/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 116 OF 2015

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REASONS FOR SENTENCE

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1. The defendant (male) (aged 20) appeared before me this morning and pleaded guilty to a single charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2. The particulars of offence avers that the defendant on 22 November 2014, outside Ground Floor, Ching Chung House, Ching Ho Estate, Sheung Shui, New Territories, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 320 grammes of a powder containing 76.7 grammes of ketamine. 

Facts

3. According to the Summary of Facts which has been admitted by the defendant, this was a stop and search case where two policemen in uniform saw the defendant acting furtively in a public housing estate in Sheung Shui.  Feeling suspicious, they intercepted the defendant for search and enquiry.

4. Upon search, an iPhone 5S box was found inside a black paper bag that the defendant was then carrying in his left hand.  Inside the box, the police officers found one transparent resealable plastic bag containing, as it were, 76.7 grammes of ketamine in purity which has been later examined by the government chemist. 

5. Under verbal caution and also in the subsequent video-recorded interview, the defendant first claimed that he picked up the iPhone 5S box in a park when he went back to his home which contained ketamine. 

6. At the time of arrest, the defendant had one mobile phone and coins of $2.4 on his person. 

7. The estimated street value of the ketamine was about HK$42,240.

Criminal record and the background of the defendant

8. The defendant had a clear record.  He had received up to Secondary 3 education.  He was, however, unemployed at the time of arrest.

9. During mitigation, Mr Ken Ng, counsel for the defendant, has submitted to the court a psychiatric report (“the report”) written by a visiting psychiatrist of Siu Lam Psychiatric Centre when the defendant was remanded in custody.  The purpose of this report is to confirm what the defendant had first said to the police officers that he is a drug addict of ketamine.

10. According to the report, the defendant was observed by the psychiatrist to have persistent auditory hallucination and was impressed to have suffered from drug induced psychosis. 

11. Both in his antecedent statement and also in this psychiatric report, there were references that he is a member of the triad “Wo Sing Wo” society since 2011. 

12. Defendant is still single and at the time of the offence he was living with his friend in a rented flat in Sheung Shui. 

13. Mr Ng told the court that the parents of the defendant was in court today to support the defendant but the couple has been divorced in 2004 already when the defendant was young.  The mother of the defendant was also known to be suffering from mental illness as well.  The report had told the court that the defendant was brought up by his mother following the divorce and the defendant had very loose discipline. 

14. The report further told the court that the defendant was sent to the boarding school from Primary 6 to Secondary 3 and then he quitted school due to poor motivation.  He had worked in a Japanese restaurant, internet bar and also as a manual worker before.  The defendant however had an unstable job record with the longest one lasting for 1.5 months only. 

15. In mitigation, Mr Ng emphasised the fact that the defendant has a clear record and then he is still young and immature at the time of the offence. Defendant had pleaded guilty to the court and fully co-operated with the police.

16. Mr Ng had also accepted that the offence for which the defendant had committed is indeed a very serious one, one which according to the tariff as laid down in Secretary for Justice v Hii Siew Cheng [2008] 3 HKC 323, will attract a starting point as high as about 75 to 76 months.

17. Mr Ng, however, did not inform the court clearly what is the reason why the defendant had to commit this offence.  He merely stated that, according to his instructions, the defendant received a call from someone on the day of the offence and he was instructed to go downstairs to the park to pick up or collect the packet of ketamine for safe custody in his home.  For this endeavour, I was told that the defendant was expected to receive a reward of HK$3,000. 

Sentencing considerations

18. Trafficking in a dangerous drug is of course a very serious offence. The Court of Appeal had already said that anyone who had been convicted with this offence would expect no mercy from the court and sentence of deterrent effect must be imposed in order not only to deter the defendant himself but also other people who, like the defendant, are contemplating to commit the offence in order to earn quick money.

19. In sentencing, I take into account the facts of this case, the nature and the quantity of the drugs, the mitigation entered by Mr Ng and also the authorities of trafficking in a dangerous drug cases. 

20. The defendant is still below 21 years and he is young.  However, he is not extremely young.  When dealing with a young defendant, usually the court will consider other sentencing options first, particularly a non-custodial sentence, before sentencing the defendant into prison. 

21. However, according to section 109(A) of the Criminal Procedure Ordinance, Cap 221, trafficking in a dangerous drug is one of those excepted offences which would allow the court to still send a young defendant straight into the prison without having to first consider other non-custodial sentencing options.

22. Also in AG v Suen Yuen Ming [1989] 2 HKLR 403, the Court of Appeal had already said that save in very rare cases, a training centre order for trafficking in substantial quantity of dangerous drug should not be imposed.  The Court of Appeal had already said that whether the defendant is young or old would carry little weight in drug trafficking offences. 

23. Recently, the Court of Appeal had reiterated this principle and in Secretary for Justice v Chau Tsz Tim CAAR 4/2014 and also Secretary for Justice v Ho Wan Chiu CAAR 5/2014,an application for review of sentence by the Department of Justice, the Court of Appeal had accepted the submissions by the prosecution and set aside the training centre orders imposed by the District Court and substituted there with a period of imprisonment in both cases.

24. The Court of Appeal said that at para 31:-

“However we are dealing with serious drug trafficking offences and in respect of such offences the courts have said that the public interest requires that deterrence of other potential offenders must take precedence over the rehabilitation of the particular offender before it. It is, therefore, not in the interest of the community to sentence even young offenders of serious drug trafficking offences to the Training Centre.”

25. As said, the present case involved ketamine.  Ketamine is commonly abused by especially youngsters in Hong Kong in the recent years.  The Court of Appeal had already revised the sentencing guidelines upwards and that for a quantity of ketamine between 50 to 300 grammes, the starting point is said to be 6 to 9 years. 

26. The present case is therefore a serious one in terms of the nature and the quantity of the drugs.  Since the present quantity of drugs was packed in one large packet, Mr Ng had fairly informed the court and conceded that there is no room for him to submit that part of the drugs was in fact possessed by the defendant for the purpose of his self-consumption.  Therefore, I would not reduce the starting point any further on account of the defendant’s self-consumption.

27. In the end, the most effective and only mitigation in this case is the defendant’s plea of guilty for which he would be given the usual one-third discount.

28. The reason why the defendant committed the present offence is not very clear but as can be seen from the fact that he was unemployed at the time of the offence and the fact that he was promised a reward of $3,000, I can assume that the reason was purely economic.  I must stress that not all the people who have suffered economic hardships would turn to crime to solve their problems, and generally speaking, the court would not accept economic reasons for committing an offence.

29. However, bearing in mind that the defendant have a clear record and is young, I shall adopt somewhat a lower starting point of 72 months.  After reducing the starting point by one-third, the sentence that the defendant will receive for this offence is one of 48 months’ imprisonment.