HKSAR v. NGAI KWOK FUNG

DCCC1096/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1096 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 court makes an order by consent leaving in the court’s file Charge 2, again a charge of trafficking, marking the same not to be proceeded with without the leave of the court or that of the Court of Appeal.

Facts

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

3.  The defendant first met a person by the name of “Ah Gau” a week before the day of the offence and played card games with him.  The defendant lost in the games and owed him $650.  To make repayment of the debt, the defendant agreed to deliver the dangerous drugs for him.  

4.  Ah Gau took the defendant to a flat in To Kwa Wan where cocaine and ketamine were stored and gave him the keys to the premises so that he could collect the drugs for delivery.   On 21 and 22 August 2011, the defendant followed Ah Gau’s instructions and conveyed a quantity of cocaine to Lok Wah Estate and Tseung Kwan O. 

5.  After the delivery to Tseung Kwan O on 22 August 2011, the defendant received further instructions to collect a quantity of ketamine at Sha Po Road, Kowloon City, and to take it to Fung Tak Estate. 

6.  At around 6 pm, the defendant arrived at a location outside the Circle K convenience store on 2nd Floor of Fung Tak Shopping Centre.  Two police officers on an anti-narcotic mission spotted him acting in a furtive manner.  They intercepted him for enquiry. 

7.  In the defendant’s possession were found a total of five plastic bags containing what was later confirmed to be a powder weighing 67.78 grammes with 51.48 grammes of ketamine in it.

8.  Under caution, the defendant confessed he delivered the ketamine for Ah Gau to repay a debt. 

Conviction

9.  The court finds the defendant guilty of Charge 1.  The defendant has had a clear record before his current conviction.

Mitigation

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

11.  The counsel for the defence submits the defendant, a young person of 16, has committed this offence to repay a debt.  He has co-operated fully with the police and is remorseful. The court is asked to give the defendant a full discount on account of his guilty plea and clear record.   

12.  The defendant was brought up in a family of the Christian faith.  A regular church-goer, he is noted by his family members, teacher, and church officials to be an honest, polite, and responsible teenager. This is supported by a bundle of clemency letters, the signatories of which include distinguished members of the society: a lawyer, a medical practitioner, and an elder of the church. 

13.  They join in one voice to ask for the court’s leniency. 

14.  Of the offence the defendant has committed, counsel submits that the defendant acted foolishly, trying to solve his money problems himself.  The defendant, it is submitted, is a simple minded person; he was used by the real culprit and has made no gains whatsoever in this criminal transaction.  The court is urged to be as lenient as possible.

Discussion

15.  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.

16.  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. 

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

18.  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.   

19.  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. 

20.  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.

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

22.  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. 

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

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

25.  In view of these factors, the Court of Appeal has laid down a sentence guideline for trafficking in ketamine (see SJ v Huii 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 years’ imprisonment.  

26.  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 did not apply, however, to excepted offences, of which trafficking in a dangerous drug is one.             

27.  Rehabilitation of young offender is of course an important consideration in sentencing.  However, the offence of which the defendant stands convicted would attract a starting point of six years; in the court’s view, no other options would adequately reflect the gravity of the crime. 

28.  In the instant case, a prison sentence cannot be avoided, but the court is prepared to allow the defendant an extra reduction on account of his young age.

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

Conclusion

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

31.  A reduction of six months is given due to the defendant’s young age. 

32.  In sentencing, the court ignores what the defendant said under caution about having dealt with cocaine on prior occasions. 

Order

33.  The defendant is sentenced to a term of imprisonment of three years and six months.