HKSAR v. CHAN TSZ LAU

DCCC 52/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 52 OF 2011

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REASONS FOR SENTENCE

1.  The defendant stands convicted after trial of one charge of trafficking in 25.69 grammes of a powder containing 19.68 grammes of ketamine, contrary to section 4 of the Dangerous Drugs Ordinance, Chapter 134.

2.  Full particulars of the offence are set out in my verdict delivered on the 8th June.  In summary around 18:22 hours on the 9th November last year the police intercepted the defendant outside Fu Kwok House,   Tai Wo Hau Estate, Kwai Chung.  Upon search PC 1362found from the defendant’s right front jacket pocket two plastic bags containing the ketamine.  Under caution the defendant admitted the drugs were for sale.

3.  In the Secretary for Justice v HII Siew-cheng [2008] 3 HKC 325 the Court of Appeal laid down guidelines for trafficking in ketamine.  Where the narcotic content is between 10 and 50 grammes sentence after trial falls within the range of 4-6 years imprisonment. 

4.  The defendant is 16.  Section 109A of the Criminal Procedure Ordinance, Chapter 221 provides no court shall sentence a person of or 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.  I have nevertheless called for a training centre report to provide me with background information, warning that even if training centre was recommended this did not mean I was going to impose a training centre order.  The appeal courts have made clear that save in very rare cases a training centre order should not be imposed for trafficking in substantial quantities of dangerous drugs (see Secretary for Justice v KO Fei-tat [2002] 4 HKC 59).

5.  The report reveals the defendant showed no interest in studying in his primary years and in secondary school his performance was barely acceptable.  In form three the defendant began to mingle with undesirable peers with triad background at which time his behavioural problems intensified.  The defendant started taking drugs and had to repeat form four.  The defendant often played truant and instead frequented cyber cafes and amusement games centres with his triad-related peers.  In November last year the defendant having no money to sustain his entertainment expenses was tempted by “Ah Wai” of the Wo Shing Wo triad society to earn fast money by engaging in drug peddling activities.   

6.  In passing sentence I have carefully considered everything said on behalf of the defendant by Mr Tolliday-Wright, together with the letters from his social worker; his school teacher; his parents and friends and the letter from the defendant saying he is sorry together with the certificates of voluntary work.  I take into account the young age of the defendant, although he cannot be said to be of extreme youth, and that he has no previous criminal record.

7.  Even though a period of disciplinary training coupled with statutory supervision is highly recommended and considered essential for the defendant to gain a deeper insight into his misdeeds, I am satisfied this is not one of those very rare cases where training centre would be appropriate.  Although young the defendant was willing to sell dangerous drugs in order to earn fast money to sustain his entertainment lifestyle.  Notwithstanding the defendant’s young age and clear record I am satisfied there are no exceptional circumstances warranting departure from the guidelines.  For the reasons given in the Secretary for Justice v HII Siew-cheng I am satisfied a deterrent sentence is required.

8.  I am satisfied the proper starting point after trial for 19.68 grammes of ketamine is 4 years and 6 months imprisonment.  In view of the defendant’s young age and clear record I reduce the sentence to 4 years and 3 months imprisonment.