HKSAR v. CHAN KIN LAP

DCCC 99/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 99 OF 2014

----------------------

---------------------

Reasons for Sentence

---------------------

1.  The defendant has pleaded guilty to one charge of trafficking in dangerous drugs.

2.  On 3 December 2013 at about 9.30 pm the defendant was intercepted by the police after he had left his residence at a public estate unit in Yau Tong Estate, Yau Tong, Kowloon.  Police officers searched the defendant and found from his trousers’ pocket one plastic bag containing 27.8 grammes of a powder containing 22.67 grammes of ketamine.

3.  Under caution, the defendant admitted that he was helping someone to deliver the dangerous drugs as he did not have any money.

4.  Police officers searched the defendant’s residence and found one electronic scale and two plastic bags containing 197 empty plastic bags.

5.  In a video-recorded interview, the defendant admitted that he and his family resided at the premises.  He was unemployed and he did not have any habit of consuming dangerous drugs. 

6.  The defendant is a 19-year-old young man.  He has no previous conviction.

7.  His solicitor Mr Tong tells the court that the defendant lived with his mother and siblings.  His mother had difficulty in walking.  The family had lived on public assistance.  The defendant only started to work as a garage apprentice early this year. 

8.  It is submitted that the defendant made frank admission as soon as he was arrested.

9.  As the defendant is only 19-year-old, although section 109A of the Criminal Procedure Ordinance is not applicable as trafficking in dangerous drug is an excepted offence, the defendant’s young age and having no previous criminal conviction are still factors that the court must consider. 

10.  I have therefore called for training centre suitability report which says that the defendant is suitable for detention in a training centre.  The question now is whether an immediate imprisonment or detention in a training centre is more appropriate in all the circumstances. 

11.  Trafficking in dangerous drug is a very serious offence.  The Court of Appeal has laid down sentencing guideline for trafficking of ketamine in Secretary for Justice v Hii Siew Cheng [2008] 3 HKC 303.  For trafficking of ketamine from 10 to 50 grammes, the imprisonment band is 4 to 6 years.

12.  The quantity of ketamine in this case was 22.67 grammes.  For this quantity, the proper starting point would have been about 4½ years’ imprisonment.  Given the one-third reduction for his plea of guilty, the proper term of imprisonment would have been about 3 years.

13.  On the other hand, while the maximum detention in the training centre is up to 3 years, the usual custodial period is said to be 18 months which is mathematically substantially shorter than the proper imprisonment term that the defendant would have been sentenced for the present offence.

14.  The defendant’s own circumstances must be considered.  The training centre report reveals that the defendant grew up in a poor family.  His father passed away in 2008 due to lung cancer.  Since then, the family relied solely on public assistance.  The defendant’s mother was weak in parenting the defendant resulting in his being led astray by triad members in his teens.

15.  Throughout the interview with the officer of the Correctional Services Department, the defendant had no reservation in disclosing his past misdeeds.  He admitted his guilt and greed in this case showing his readiness to bear the legal consequences of his wrong.  It appears to me that the defendant has genuine remorse of his guilt.  This is also evidenced by his immediate admission and co-operation with the police when he was arrested.

16.  I am aware of the principles discussed in Wong Chun Cheong v HKSAR [2001] 4 HKCFAR 12.  Having considered all the circumstances, I am of the view that a training centre order with a supervision for 3 years after release should not be regarded as a too lenient sentence.  A training centre detention order will punish the defendant by depriving his liberty for a substantial period of time on the one hand and give the defendant a chance to receive vocational training during the detention and thereafter subject to supervision for 3 years on the other hand. 

17.  I agree with the recommendation of the training centre report that the order will strengthen the defendant’s law abiding concept and help him gaining insight into his problems.  I believe it will be in the interest of the defendant and in the interest of the community as well.

18.  Defendant, I now sentence you to the training centre.  I must warn you this sentence might be viewed as a very lenient one, but I accept you have shown genuine remorse in this case.  I hope you will treasure this opportunity, learn some skills in a trade, find a job after your release and turn over a new leaf.  That is my order.