HKSAR v. TO CHI WING

DCCC1098/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1098 OF 2011

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Reasons for Sentence

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1.  The defendant enters a plea of guilty to Charge 1 respecting an offence of trafficking in a dangerous drug, preferred against him under section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134. The prosecution offering no evidence in support of Charge 2, a charge of assaulting a police officer, the court acquits the defendant of Charge 2.

Facts

2.  The facts to which the defendant agrees are as follows. 

3.  On the early morning of 8 July 2011, a team of police officers were conducting an anti-narcotic operation at the lift lobby on the 4th floor, Lower Block, Shek Chun House, Shek Mei (I) Estate, Kwai Chung, when they saw the defendant trying to put inside a can  a plastic bag containing a powdery substance.  The officers revealed their police identity to the defendant, who immediately threw the bag outside the building.

4.  The officers had the defendant handcuffed and recovered from the platform of the 2nd floor the plastic bag the defendant threw away and its contents. 

5.  A government chemist found the powdery substance weighed 145.43 grammes and that it contained 101.71 grammes of ketamine.   

Conviction

6.  The court finds the defendant guilty of Charge 1.  

7.  The defendant has had three criminal records before his current conviction and has once been sent to the Drug Addiction Treatment Centre. 

Mitigation

8.  In mitigation, the defence puts forward the following matters for the court’s consideration. 

9.  The defendant agrees with the contents of the Training Centre Report, and understands that a Training Centre Order is not recommended. 

10.  The report shows that the defendant is now 18 years old and is the youngest and only son of the family. The defendant has fallen behind in his secondary studies, become wayward, and has, under the influence of bad peers, ended up addicted to dangerous drugs. 

11.  A bundle of clemency letters together with various certificates is submitted to court.  The letters show that despite the defendant’s drugs problems, his family remains supportive of him.

12.  Counsel for the defence refers to the well-established sentence guideline and asks the court to be as lenient as possible in sentencing the defendant. 

Discussion

13.  Drug abuse poses a constant threat to the well-being of the society; no one should be in any doubt about this.  It ruins families and breeds crimes, ad hoc and organised.  It wrecks a person’s life beyond hope and repair, sometimes.

14.  Even those who have successfully fought and overcome their addiction, which is itself a most painful process, their personalities and emotional make-up can be marred for life;  employment opportunities for them are very often limited; and prospects of their reintegration into the society are grim. 

15.  What often awaits drug addicts, and ex-addicts alike, is extreme poverty over sustained periods and a life without self-esteem.  In terms of social costs and loss, the society suffers beyond measure. 

16.  Drug traffickers are responsible for the spread of this vice habit.  The duty is upon the court to play its part in the fight against the drug trade, to see to it that no one would be in any doubt that the society does not tolerate criminal conduct involving drug deals.  

17.  The particular dangerous drug with which the court is concerned is ketamine, a psychotropic substance often used by drug abusers in conjunction with alcohol or other dangerous drugs.  It is well-known for its hallucinogenic effects. 

18.  The abuse of ketamine causes impairment of the cognitive function, in worse cases, making the abusers liable to drown, to fall from height, and to cause car accidents.

19.  There is a correlation, medical experts have established, between ketamine and kidney dysfunction and shrunken bladder effect. 

20.  Sociologists have opined that among places where ketamine was abused, Hong Kong appeared to be worse, and that ketamine hit our younger generation, particularly those under 21. 

21.  Academic research has revealed that ketamine caused amnesia and could be used to facilitate sexual assaults by hampering the victim’s memory of what happened. 

22.  Most important of all, the abuse of ketamine has in recent years become rampant in Hong Kong. 

23.  In view of these factors, the Court of Appeal has laid down a sentence guideline for trafficking in ketamine (see SJ v Hii Siew Cheng [2008] 3 HKC 323).  For the amount of ketamine the defendant trafficked in in this case, the appropriate sentence is one of six and a half years’ imprisonment. 

24.  There is an international norm that a prison sentence should be imposed on a young offender only as the last resort.  Hong Kong gives effect to this international standard by way of Section 109A of the Criminal Procedure Ordinance, Cap. 221, which requires the court to consider all options before imposing a prison term.  This requirement does not apply, however, to excepted offences, and trafficking in a dangerous drug is an excepted offences.           

25.  Rehabilitation of the young offender is of course an important consideration in sentencing.  The offence of which the defendant stands convicted would however attract a starting point of six and a half years; in the court’s view, it is most unlikely that any other options can adequately reflect the gravity of the crime. 

26.  At the suggestion of the defence counsel, however, the court has commissioned a Training Centre Report. The assessment officer of the Correctional Services Department has, as it turns out, found the defendant unsuitable for detention at the Training Centre in view of his drug addiction. 

27.  After serious consideration, the court is of the view that nothing in the defendant’s personal and family circumstances would warrant any further reduction in sentence. 

Conclusion

28.  In the result, the appropriate starting point is one of six and a half years, which is reduced by one-third to reflect the defendant’s guilty plea to one of four years and four months’ imprisonment. 

Order

29.  The defendant is sentenced to a term of imprisonment of four years and four months.