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DCCC 265/2014
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 265 OF 2014
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HKSAR |
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WONG Ka-yee |
(D1) |
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CHOW Hoi-tung |
(D2) |
| ____________ |
| Before : |
H.H. Judge G. Lam |
| Present : |
Mr. Wilson CHOI, PP, of the Department of Justice, for HKSAR. |
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Mr. WONG Man Ming of M/s Ivan Tang & Co., assigned by the Director of Legal Aid, for D1. |
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Ms. CHAN Choi Ling of M/s Louis K.Y. Pau & Co., assigned by the Director of Legal Aid, for D2. |
| Offence : |
(1) Trafficking in a dangerous drug（販運危險藥物） |
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(2) Possession of apparatus fit and intended for the inhalation of a dangerous drug（管有適合於及擬用作吸服危險藥物的器具） |
REASONS FOR SENTENCE
1. D1 and D2 are jointly charged with an offence of "Trafficking in a dangerous drug" (Charge 1). D2 alone also faces a charge of "Possession of apparatus fit and intended for the inhalation of a dangerous drug" (Charge 2). They pleaded guilty to the respective charges. The dangerous drug involved is ketamine.
Summary of Facts
2. About 2:15 a.m. on 15 December 2013, PC 59010 (PW3) and PC 9556 (PW4) intercepted D1 and D2 at the staircase near Room 4016, 40th Floor, Sau Yue House, Sau Mau Ping Estate, Kowloon for enquiry.
3. From the handbag carried by D1, PW3 found 3 plastic bags (later found to contain a total of 27.84 grammes of a powder containing 19.90 grammes of ketamine) and a plastic bag containing 72 resealable plastic bags.
4. From the handbag carried by D2, PW4 found 8 plastic bags (later found to contain a total of 97.58 grammes of a powder containing 70.13 grammes of ketamine); a glass tube with a bulb-shaped end which contained traces of a powder containing methamphetamine (Charge 2); another glass tube with a bulb-shaped end; 1 bulb-shaped glass bottle; 1 plastic straw; and a plastic bag containing 59 resealable plastic bags.
5. After the respective searches, D1 and D2 were cautioned. D1 admitted that she and D2 went to the scene as D1 was instructed by a friend to pick up something and deliver it to Lam Tin. That friend of D1 promised a reward of $70 to be shared equally by D1 and D2. D2 admitted that she and D1 were instructed by a female to deliver the 8 packs of ketamine to Lam Tin for a reward of $35 per person.
6. D1 and D2 were then arrested by PW3 and PW4 respectively and cautioned again. D1 asked for a chance and claimed that she helped her friend to deliver ketamine since D1 had no money. D2 said she had learned a lesson and would not do it again. She also admitted that she inhales "Ice" using the apparatus found in her handbag.
7. In their respective video recorded interviews, D1 and D2 each gave a detailed account of how they committed the offence(s).
Mitigation
D1
8. She is 17 and has a clear record. She resides with her family in a public housing unit. Her lawyer Mr. WONG informed me D1 left school at the age of 15 after completing F.2. She then assisted with housework and looked after her grandmother. In September 2013, she enrolled in a cosmetic and hair design course.
9. In mitigation, Mr. WONG submitted that D1 foolishly agreed to help a friend in return of a reward of $35 only. She is now very remorseful. A bundle of mitigation letters was placed before me; their contents are duly noted.
D2
10. She is 15 and has a clear record. Her lawyer Ms. CHAN informed me that D2's parents were divorced when she was 6. She resided with her father and sister, but did not get along well with her father. Her mother was granted custody recently. D2 has reached F.2 only.
11. In mitigation, Ms. CHAN stressed that D2 has made frank admissions to the Police by revealing the source of the drug and address involved even though without fruitful results.
12. In view of D2's young age[1](under 16), sentencing was adjourned to obtain a Rehabilitation Centre/Training Centre Suitability Report. The Report is a favourable one; the officer considers D2 fit for detention in a Rehabilitation Centre or Training Centre.
Sentence
13. A clear message must be conveyed to the general public that "drug trafficking" is a serious crime and that drug traffickers would most certainly be punished by long-term imprisonment.
14. Although D1 is under 21, by virtue of section 109A(1A) of the Criminal Procedure Ordinance (Cap.221), I need not obtain any pre-sentencing report. Besides, the quantity of ketamine involved in this case is far too serious to consider other sentencing options except an immediate prison term.
15. The Court of Appeal has laid down clear sentencing guidelines for trafficking in ketamine (see SJ v HII Siew Cheng [2009] 1 HKLRD 1). For 50 to 300 grammes, the sentence ranges from 6 to 9 years' imprisonment. In the present case, the defendants trafficked in 90.03 grammes of ketamine. For that quantity, the appropriate starting point is 6.5 years.
16. I will deal with D1 first. I adopt 6.5 years' imprisonment as the starting point. A one-third discount is given for the guilty plea, reducing the sentence to 52 months. In view of her young age (under 18), I will grant her a further reduction of 4 months. D1 is sentenced to 4 years' imprisonment.
17. Regarding D2, I am aware of the sentencing tariffs. I have borne in mind the length of the prison term she is likely to receive had she been an adult. On the other hand, I cannot overlook her age and her need for rehabilitation. I have reminded myself that correctional institutions such as Training Centres exist for the benefit of young offenders. These institutions play an important role in our penal system.
18. Although the officer considers Rehabilitation Centre more suitable for D2, I consider that such an order does not adequately reflect the seriousness of Charge 1. I would not hide the fact that D2's age played a determining factor which spared her the punishment of immediate imprisonment. After careful consideration, I, with some reluctance, have decided to make a Training Centre Order, which will be the sentence for Charge 1 for D2. For Charge 2, I fine her $1,000[2].
[1] I am aware of the requirements stipulated under section 3F(1) of the Juvenile Offenders Ordinance (Cap.226). I take the view that it would be undesirable to remit D2's case to a juvenile court in order to avoid disparity in the sentences. Furthermore, D2's case is far too serious to be dealt with by the sentencing options which are only available to a juvenile court.
[2] I did not see the need to obtain a DATC Report since DATC would not be a viable option for D2. However, by virtue of section 54A(1) of the Dangerous Drugs Ordinance (Cap.134), I cannot impose a custodial sentence for Charge 2 without first considering a DATC Report. The Training Centre Order for Charge 1 does not trigger the exception under section 54A(1A).
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