HKSAR v. CHU KWOK WAI

DCCC 1117/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1117 OF 2009

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Reasons for Sentence

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The charge and facts

1. The defendant pleads guilty to trafficking in a dangerous drug, ketamine, which took place in the evening of 9 March 2009.  He was sitting at the back of the taxi when the police stopped the taxi at a police road block on Science Museum Road, Tsim Sha Tsui East.  When he alighted, the police found from his trouser pocket a transparent plastic bag which in turn contained a wad of empty re-sealable plastic bags, an electronic scale, and 3 bags of ketamine.  He said that he was to deliver the drug to the fountain in Tsim Sha Tsui East to someone.  In a bag carried by him was $8,251.50 cash.

2. The drug in total was 21.60 grammes of a powder containing 16.78 grammes of ketamine.

Mitigation put forward

3. The Defendant is 16 years of age.  He was born on 25 January 1993.  He has attained F. 3 education level.  He lives with his parents and 2 sisters.

4. His solicitor submits that the Defendant would earn $300 as a reward for delivering the things to a seller of drug.  He had committed the present offence because he could not control himself.  I do not exactly know what that means but this appears to be all that his solicitor is able to say.   

5. He has 3 previous court cases resulting in a conviction for possession of a dangerous drug and other dissimilar convictions.  He has been given a spectrum of sentences from probation, reformatory school, and then to detention centre in April 2009.  He was released from detention centre in September 2009.  Afterwards, he attended a 6-day training programme as a clerk and an 18-day Outward Bound Sea Course in September 2009. He had rendered voluntary service at the adult training centre of Cheung Sha Wan on 21 September 2009.

6. As the detention centre recall period is still subsisting, his solicitor asks this Court to consider tagging the present sentence onto its recall regime. 

7. The Defendant can offer no explanation for committing the present offence whilst on police bail for the possession case of Kowloon City Magistracy (KC/1652/09).

Sentencing principles

Sentencing an offender aged between 16 and 21

8. Section 109A of Criminal Procedure Ordinance, Cap. 221, provides that:

(1) No court shall sentence a person of or over 16 and under 21 years of age to imprisonment unless the court is of opinion that no other method of dealing with such person is appropriate; and for the purpose of determining whether any other method of dealing with any such person is appropriate the court shall obtain and consider information about the circumstances, and shall take into account any information before the court which is relevant to the character of such person and his physical and mental condition.
(1A) This section shall not apply to a person who has been convicted of any offence which is declared to be an excepted offence by Schedule 3.

9. The offence of trafficking in a dangerous drug is an excepted offence in Schedule 3.  The Court shall consider imprisonment on an equal footing with other sentencing options.  

The sentencing guidelines

10. The Court of Appeal in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1 had laid down new sentencing guidelines for trafficking in ketamine as follows:

 (1)     up to 1 gramme – within the sentencer’s discretion;

(2)     over 1 gramme to 10 grammes – 2 to 4 years’ imprisonment;

(3)     10 to 50 grammes – 4 to 6 years;

(4)     50 to 300 grammes – 6 to 9 years;

(5)     300 to 600 grammes – 9 to 12 years;

(6)     600 to 1,000 grammes – 12 to 14 years;

(7)     over 1,000 grammes – 14 years upwards.          

11. The drug in question, 16.78 grammes, would fall in the band of 10 to 50 grammes – 4 to 6 years’ imprisonment. 

Committing an offence whilst on bail for another offence

12. In HKSAR v Yuen Gang-shing Cr App 303/ 1997, the Deputy Judge adopted a starting point of 7 years’ imprisonment on the ground that the 1 year on top of the 6 years was due to the Applicant’s having committed the offence whilst he was on bail.  In upholding the sentence, Liu JA said in para. 5 of the Judgment:

Commission of any offence whilst on bail is unquestionably an aggravating factor to be taken into account as did the Deputy Judge.

13. In HKSAR v Ngo Wai-kuen Cr Apps 191 & 334/ 2004, the Applicant was put on bail for the offence of possession of a dangerous drug (Charge 1).  She then committed another offence of possession of a dangerous drug (Charge 2) and the offence of keeping a divan (Charge 3).  Stuart-Moore VP said in para. 9 of the Judgment:

Each offence was committed on a wholly separate occasion.  Indeed, it is a significant aggravating feature that the second and third offences in the sequence were committed whilst the applicant was on bail. 

Sentencing present defendant

14. The Defendant is not a green horn in the criminal world.  Apart from his admitted knowledge of the recipient to be a seller of drug, the irresistible inference is that the seller was also packaging the drug.  That means the drug would get into some other people’s hands.  Both the quantity involved and his role were serious, a detention centre order would fail to reflect the culpability or act as an effective deterrence.  Together with the factor of committing this offence whilst on bail for the possession case, I take 4 years and 6 months as the starting point.  I reduce by 18 months due to his plea of guilty.  The single day of voluntary work does not qualify as an extra mitigating factor.  The sentence is 3 years.  

Important reminder to lawyers

15. Solicitors or counsel acting for defendants in sentencing proceedings are reminded to take full instructions on all basic and relevant factors before the proceedings commence.  It is a waste of everyone’s time for them to shuttle between the bar table and the dock to do so after the proceedings have commenced.  Such lack of preparation or organization can only jeopardize the basic welfare of their clients in court.  It takes up a lot of the court’s time to right such wrong.  This is not going to invite any positive view for either their personal standing or their profession in general.