HKSAR v. CHAN MIU KAM AND ANOTHER

DCCC607/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 607 OF 2012

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Reasons for Sentence

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1. On the evening of 16 May 2012 police officers conducted a house search at the address particularized in the charge sheet (the premises). At that time D1, D2’s mother and D2’s girlfriend were inside the premises.

2. On the premises, exhibits were found as follows:

(1) 11 plastic bags containing ketamine (Exhibit 1) in a white candy tin box (Exhibit 2) inside a cabinet in a room said to be D2’s;

(2) 6 plastic bags containing ketamine (Exhibit 3) in a pink bag inside a wardrobe in the living room; and

(3) 1 spoon and 21 empty plastic bags in a drawer inside the wardrobe; and

(4) 123 empty plastic bags in the drawer of a desk in the living room.

3. Later D2 was arrested at the lift lobby of the premises. 

4. D1 was born on 25 September 1994 and was 17 years old.

5. Under caution, D1 admitted, inter alia, as follows:

(1) Exhibits 1 and 3 contained ketamine;

(2) D2 gave her money and identified supplier of ketamine to her. She would get into vehicles of suppliers to make the purchase;

(3) D1 would then use a spoon to repackage the ketamine into smaller bags;

(4) D2 would take calls from customers and sell ketamine to them at the premises. If D2 was not at the premises, D1 would help in selling the ketamine to customers. D1 could get a reward from D2 at $500 for selling every 29 to 36 plastic bags of ketamine;

(5) D1 resided at the premises without paying rent.

6. Under caution,  D2 also admitted, inter alia, as follows:

(1) He knew D1 was 17 years of age;

(2) He would give D1 money to purchase ketamine, D1 would then repackage the ketamine into smaller bags;

(3) He would give D1 a reward of $200 to $300 for selling every 14 grammes of ketamine and allow D1 to reside at the premises without paying rent;

(4) When customers called D2, D2 would ask them to come to the premises and tell D1 to sell the drugs to and collect the money from the customers. D1 would then return the money from customers to D2.

7. Before the arraignment, the prosecution had indicated that they would apply for enhancement of the sentence of D2 under section 56A(1) of the Dangerous Drugs Ordinance on the ground under section 56A(2)(d) that D2 used D1, a minor, in the commission of trafficking in dangerous drug. 

Background and mitigation

8. Mr Ng, solicitor for both defendants, asked the court to call for pre-sentence reports to consider both defendants’ background and suitability of admission to institutions of the Correctional Services Department other than a prison.  In view of the serious nature of the offence, I have declined the proposal.

9. D1 is aged 17.  She has no previous criminal record.  She received education up to Form 4.  She was a beautician before arrest.  Though single, she was pregnant at the time of arrest.  Mr Ng tells the court that D1 has upon advice of social worker undergone abortion.  She was a drug addict.  D1 has parents and one younger brother.  At the time of arrest D1 was not living with her parents because she did not want her parents to know that she was pregnant.  D2 was her sworn brother. 

10. In mitigation Mr Ng says D1 only gave a helping hand to D2, she was not the principal offender.  He asks the court to consider the rehabilitation of D1 in view of her young age and clear record.

11. Today Mr Ng further submits mitigation letters from D1 and her parents.  D1 expressed her remorse in the letter.  I have duly considered the contents of the mitigation letters. 

12. D2 is aged 21, single.  At the time of arrest he was living with his mother and D1.  He received education up to Form 3 and was a decoration worker before arrest.  He was a drug addict.  He has three previous convictions for possession of dangerous drug.  He was last sentenced to DATC in May 2011 and discharged in December 2011. 

13. Mr Ng tells the court that D2 asked D1 to help him to sell dangerous drug because they were friends.  D1 voluntarily helped him and there was no exploitation of her.

14. In opposing the application for enhancement of the sentence of D2, Mr Ng submits that the fact that D1 got $500 reward from D2 cannot prove that D2 employed D1 to traffic in dangerous drugs.  Moreover, D1 and D2 were friends, D2 was the sworn brother of D1 and, D2 allowed D1 to stay at his premises for free.  D1 voluntarily helped him to sell the drugs and all buyers of drugs were friends of D2. 

15. There was some confusion at the beginning of the mitigation as to whether the defendants claimed any part of the drugs in question were for their own consumption.  Upon clarification, Mr Ng, having taken instructions from both defendants, confirms that neither of the defendants would claim self-consumption of any part of the dangerous drug. 

Sentencing consideration

16. Trafficking in dangerous drug is a very serious offence.  To combat the crime, the Court of Appeal has laid down guidelines in various cases in sentencing.  The total narcotics of ketamine in this case is 11.21 grammes of ketamine.  Applying the guidelines in Hii Siew Cheng, CAAR7/2006, the starting point should be 4 years’ imprisonment.

17. I have noted the background of both defendants including their age, their addiction to drugs and that D1 has no previous conviction.  However, I have declined the suggestion of calling for reports to consider the defendants’ suitability for probation and admission to institutions of the Correctional Services Department other than a prison.

18. D1 is 17.  Section 109A of the Criminal Procedure Ordinance provides, “No court shall sentence a person of over 16 and under 21 years of age to imprisonment unless the court is of the opinion that no other method of dealing with such person is appropriate.”  This provision, however, does not apply to an excepted offence.  Trafficking in dangerous drug is an excepted offence.  That said, “it is still incumbent upon the courts to be wary and to exercise great care before they commit young offenders to prison.”  See AG v Suen Yuen Ming CAAR25/1988 and R v Chiang Sun Keung [1997] HKLRD24. 

19. However, the court has to keep in mind other factors: retribution, deterrence and prevention.  Interest of the community cannot be disregarded.  For a serious offence like trafficking in dangerous drug, the youth of an accused will count for little.  The quantity of drug in this case is not small.  D1 was not simply a naïve courier used by trafficker, she actively took part in purchasing, repackaging and selling of the drugs.  D2 was running a retail business in drugs. 

20. Having considered all the circumstances, I am of the view that the only appropriate sentence for both defendants is imprisonment. Other forms of sentence are not sufficient for the gravity of this offence. 

21. D1 and D2 were acting in joint enterprise and should bear the same responsibility. 

22. D1 is 17.  It is noted that in dangerous drug trafficking cases, young offenders are generally sentenced on the same tariff as an adult offender based on the quantity of the drugs.  However, I accept the submission of Mr Ng that D1 played a lesser role than D2 in this case.  The illicit business was not a co-operation of D1 and D2.  It was only funded by D2.  D1 only helped D2 to purchase and repackage and sell the drugs.  She did not share in the profit but received a small reward only.  She has no previous conviction.  At the time of the offence, being pregnant she was eager in finding accommodation to conceal her pregnancy from her parents.  In the circumstances she could be easily influenced by D2.

23. Taking all the circumstances in consideration, I will only use 3½ years as the starting point for D1.  I will further give her one-third reduction for her plea of guilty.  D1 is therefore sentenced to 2 years and 4 months’ imprisonment.

24. In the case of D2, I take 4 years’ imprisonment as the initial starting point.  The prosecution applied for enhancement of the sentence.

25. “Minor” is not defined in the Dangerous Drugs Ordinance.  Under the Interpretation and General Clauses Ordinance, Cap. 1, an adult is a person who attains the age of 18, so anyone below 18 is a minor. There is no dispute that D1 is a minor.  Mr Ng, however, submits that D2, merely giving a small reward to D1, did not employ D1.  In my judgment, on the admission of the facts that he gave D1 money to purchase dangerous drug, that he gave D1 a reward for selling every 14 grammes of ketamine and that he allowed D1 to reside at his home without paying rent, there was clearly sufficient evidence to establish the employment relationship.

26. Moreover, the prosecution does not have to prove their employment relationship.  Use of a minor to commit the offence would suffice.  This is a clear case that D1 was used by D2 in the commission of the offence.

27. I am satisfied that the prosecution has proved the basis for enhancement under 56A of the Dangerous Drugs Ordinance.

28. It is also submitted that D1 and D2 were friends and sworn brother and sister, D1 only helped D2 voluntarily and there was no exploitation of D1.

29. I accept that there is no evidence that D1 was forced to commit the offence.  Had there been coercion, the extent of enhancement would have been higher.  As to exploitation, in my view, using a minor to commit an offence is already itself an exploitation in the sense that the minor is taken advantage of his age and immaturity.

30. The next question is the extent of enhancement. In HKSAR v Wong Kwok Hung CACC225/2002, the Court of Appeal considered a 50 per cent increase was appropriate in that case.  The minor was aged 17.  The initial starting point of 4 months’ imprisonment was enhanced to 6 months by the Court of Appeal. 

31. In HKSAR v Chan Ka Shing [2012]2 HKLRD220, the Court of Appeal enhanced the sentence of 13 years’ imprisonment by 2 years.  The minor in that case was 15 years old and the applicant was aged 18 at the time of offence. 

32. In HKSAR v Ng Hon Keung [2012]1 HKLRD1017, the Court of Appeal only enhanced 1 year and 4 months from the sentence of 8 years and 8 months after plea.  The youth used was just a few months short of his 18th birthday.  The Court of Appeal observed in that case that it would not be helpful to suggest any figure of increase as the degree of enhancement will depend on the context of the case.  A sense of proportion must be considered. To simply apply a percentage figure may result in an excessive total sentence.

33. In the present case I will first reduce the initial starting point by one-third to 32 months for the plea of guilty of D2.  The minor, D1, was almost 17 years and 8 months old at the time of the offence.  D2 himself was 21 years of age.  So there was not a very big age gap between the two defendants, and it must be noted that D2 knew D1 was only 17. 

34. On balance of all the factors, I enhance the sentence of D2 to 38 months, i.e. by 6 months, almost 19 per cent. 

Sentence

35. D1, 2 years and 4 months’ imprisonment.  D2, 3 years and 2 months’ imprisonment.