HKSAR v. CHA KA HEI AND OTHERS

DCCC 80/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 80 OF 2014

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Reasons for Sentence

In respect of D1 and D3

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Charges

1.  D1 and D3 plead guilty to the following drug trafficking charges:

Charge	Offence date	Against	Drug (narcotic )	Location in N.T.
1	5/9/2013	D1	Cocaine (0.24 g)	Jazz Pub, On Ning Road, Yuen Long
2	11/9/2013	D1	Cocaine (0.24 g)	Fau Tsoi Street, Yuen Long
3	9/10/2013	D1, D3	Ketamine (2.04 g)	Outside market, Tin Shui Wai
4	17/10/2013	D1, D3	Cocaine (0.20 g)	Tin Shui Wai MTR exit
5	19/10/2013	D1, D3	Cocaine (0.16 g)	Tin Shui Wai MTR exit
6	19/10/2013	D1, D3	Cocaine (0.10 g)	MTR Locwood LRT platform
7	21/10/2013	D1, D3	Cocaine (0.10 g)	Tin Shui Wai MTR exit
8	24/10/2013	D1, D3	Cocaine (0.10 g)	Tin Shui Wai MTR exit

Facts

Police in decoy

2.  Between August and October 2013, the police conducted a dangerous-drug operation in Yuen Long.  PW1 and PW2 were police officers in decoy.  The operation turned overt at the end of October 2013.  D1 and D3 were arrested. 

1^st Charge

3.  D1 was a waitress at Jazz Pub located at Ground Floor and Mezzanine Floor, Hung Wan Building, No. 21A On Ning Road, Yuen Long, N.T.  At night time on 5/9/2013, when PW1 was there, she offered to sell him cocaine at $250 per droplet.  He paid her $250.  She passed a packet of cocaine to him.  The packet contained 0.25 g of a solid containing 0.24 g of cocaine.    

2^nd Charge

4.  On 11/9/2013, D1 talked to PW1 on the phone.  She offered to sell him cocaine at $250 per droplet.  He agreed to buy one droplet.  They arranged to meet up.   At night time that day, they met up outside an amusement game centre on Fau Tsoi Street.   D1 took PW1 to a private car whose driver gave D1 a packet of cocaine for PW1.  PW1 paid $250 to the driver.  The packet contained 0.26 g of a solid containing 0.24 g of cocaine.     

3^rd Charge

5.  On 9/10/2013, PW2 called D1 and stated that she was PW1’s friend.  D1 offered to sell ketamine to her.  They arranged to meet up.   At night time that day, D1 in the company of D3 and a boy CHAU met up with PW2 outside Tin Yan Estate Market, Tin Shui Wai.  D3 was D1’s boyfriend.  D1 offered to sell $1,000 worth of ketamine to PW2.  PW2 paid $1,000 to D1.  D3 directed CHAU to make a call to deliver the ketamine.  D1 asked PW2 to wait for a while. Afterwards, D1, D3 and CHAU returned with 2 packets of ketamine for PW2.  The 2 packets contained a total of 3.79 g of a powder containing 2.04 g of ketamine.

4^th Charge

6.  On 17/10/2013, D1 talked to PW1 on the phone.  She offered to sell him 2 droplets of cocaine at $700.  He agreed to buy 2 droplets.  They arranged to meet up.   At evening that day, D1 and D3 met up with him near Exit B of MTR Tin Shui Wai Station.  Upon D1’s direction, PW1 paid $700 to D3.  D3 left for a while and returned with 2 packets of cocaine for PW1.  The 2 packets contained a total of 0.32 g of a solid containing 0.20 g of cocaine.     

5^th Charge

7.  On 18/10/2013, D1 talked to PW1 on the phone.  She offered to sell him 2 droplets of cocaine at $700.  He agreed to buy 2 droplets.  They arranged to meet up.   At evening that day, D1 and D3 met up with him near Exit B of MTR Tin Shui Wai Station.  Upon D1’s direction, PW1 paid $700 to D3.  D3 left for a while and returned with 2 packets of cocaine for PW1.  The 2 packets contained a total of 0.26 g of a solid containing 0.16 g of cocaine.     

6^th Charge

8.  On 19/10/2013, D1 talked to PW1 on the phone.  She offered to sell him 2 droplets of cocaine at $700.  He agreed to buy 2 droplets.  They arranged to meet up.   At night time that day, D1 and D3 met up with him at MTR Locwood LRT Station, Tin Shui Wai.  PW1 paid $700 to D3.  D3 left for a while and returned with 1 packet of cocaine to PW1.  The packet contained 0.21 g of a solid containing 0.10 g of cocaine.     

7^th Charge

9.  On 21/10/2013, D1 talked to PW1 on the phone.  She offered to sell him 2 droplets of cocaine at $700.  He agreed to buy 2 droplets.  They arranged to meet up.   At night time that day, D1 and D3 met up with him near Exit B of MTR Tin Shui Wai Station.  PW1 paid $700 to D3.  D3 left for a while and passed 1 packet of cocaine to PW1.  The packet contained 0.15 g of a solid containing 0.10 g of cocaine.     

8^th Charge

10.  On 23/10/2013, D1 talked to PW1 on the phone.  She offered to sell him cocaine.  He agreed to buy.  They arranged to meet up.   At evening on 24/10/2013, D1 and D3 met up with him near Exit B of MTR Tin Shui Wai Station. PW1 paid $700 to D3.  D3 left for a while and passed 1 packet of cocaine to PW1.  The packet contained 0.15 g of a solid containing 0.10 g of cocaine.

Arrest and records of interview

11.  Upon completion of the last offence, the police arrested D1 and D3.  D1 admitted under caution that out of the 8 offences, she had earned a total of $2,150.  D3 admitted under caution that he had bought the cocaine at $250 and resold it to PW1 at $700.  He could not recall the details of the other offences. 

12.  PW1 and PW2 positively identified D1 and D3 in formal identification parades. 

Personal background and mitigation

13.  D1 was aged 15 at the time of the offences.  She will turn 16 next week. She has a clear record.  Her father is a taxi driver whereas her mother is a housewife.  As their only child, she maintains fair relationship with them.  A baneful schoolmate brought her to mix with undesirable peers.  Since ceasing her studies after F. 2, she has indulged in idle merriments in video game centres and public parks.  She has been toying with dangerous drugs on and off.  She last worked in the pub before arrest. 

14.  D3 was aged 16 at the time of the offences.  He is now 17.  He had record for common assault in April 2013 for which he was put on 12 months’ probation. He was in breach of the probation in November 2013 whereupon he was sentenced to the Detention Centre.  At the present moment, he is still there.  During the mandatory residential period of his probation, he had not complied with the curfew time and again.  His father is a lorry driver whereas his mother is a part-time telephone receptionist at a taxi service centre.  He maintains fair relationship with them.  He has an elder sister working as a clerk and living apart.  He dropped out of school without completing F. 4.  He is unwilling to disclose much of his background and peers which are triad-related.  He has been toying with dangerous drugs on and off.  He last worked as a transportation worker before arrest. 

15.  The Training Centre Report regards a period of disciplinary training coupled with statutory supervision beneficial for the rehabilitation of D1 and D3 each.  They are mentally and physically fit for the Training Centre. 

Sentencing guidelines

16.  In R v Lau Tak-ming [1990] 2 HKLR 370, the Court of Appeal sets out the tariff sentences for trafficking in heroin.  In Attorney General v Rojas [1994] 1 HKC 342, a case of trafficking in cocaine, Silke VP in the Court of Appeal observed that the psychotropic harm of cocaine can be equated with that of heroin for the purpose of sentencing.  The tariff sentences of R v Lau Tak-ming shall be applicable.  A trafficker of below 10 g shall face 2 – 5 years’ imprisonment.   

17.  In SJ v Hii Siew-cheng [2007] 1 HKLRD 1, the Court of Appeal sets out the tariff sentences for trafficking in ketamine.  A trafficker of 1 – 10 g shall face 2 – 4 years’ imprisonment. 

18.  Section 109A of the Criminal Procedure Ordinance (Cap. 221) provides:

(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.

19.  The offence of trafficking in dangerous drugs is under section 4 of the Dangerous Drugs Ordinance (Cap. 134), an excepted offence by Schedule 3.

20.  In other words, the court shall consider the Training Centre on a par with imprisonment in sentencing young drug traffickers.     

Sentencing D1 and D3

21.  Although the narcotic quantity was small in each offence, there are many instances of drug trafficking.  They had implemented a regular system of soliciting customers and delivery of drugs.  They could get hold of cocaine as well as ketamine.  One of their associates even drove a car to facilitate delivery.  They easily warrant an overall starting point of 5 years’ imprisonment.  I am not disinclined to send D1 to the prison.  There is even stronger reason to put D3 in prison due to his poor compliance with probation and his more senior age than D1.  It has to be D1’s young age and D3’s gradual improvement demonstrated in the Detention Centre that tilts the delicate balance at the tip of the scale.  I am prepared to put them up for rehabilitation in the Training Centre for all the charges.  They should be well aware by now that their next stop shall be the prison if they fail to reform themselves in the Training Centre.