HKSAR v. CHOY TSZ KIN

DCCC 721/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 721 OF 2015

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REASONS FOR SENTENCE

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1.  The defendant (male) (aged 17 years) appeared before me this morning and pleaded guilty to a single charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.  The subject matter of the dangerous drugs are 25 plastic bags containing a total of 18.10 grammes of a powder containing 12.50 grammes of ketamine, and also 14 plastic bags containing a total of 3.06 grammes of a solid containing 1.31 grammes of cocaine.

Facts

3.  According to the amended Summary of Facts, which the defendant has admitted, at about 1815 hours on 22 May 2015, two police officers patrolled at the Shek Kip Mei Estate and noticed the defendant sitting outside the ground floor of Block 23 alone.  The defendant was then holding a coin bag and acting furtively.  Subsequently, he was intercepted by the two police officers, and the suspected dangerous drugs were eventually found inside the coin bag.

4.  The defendant was immediately arrested and cautioned.  At the scene, the defendant stated the drugs were for his self‑consumption. The police also found the defendant having two mobile phones on his person and also cash of $3,130.

5.  The street value of all the drugs is estimated to be HK$3,233.

Criminal record and the background of the defendant

6.  The defendant is aged 17 and he has a clear record.  He was educated up to Form 3.  At the time of arrest he worked, according to mitigation, as a part-time delivery worker, earning a daily wage of $500 per day.

7.  The defendant is still single and he lives with his grandmother.

Mitigation

8.  It was submitted on behalf of the defendant that the defendant was very stupid in committing this offence.  The defendant came from a broken family.  His parents abandoned him when he was a child and he was basically raised up by his grandmother.  As the story goes, he was affected by some of his dubious peers and bad characters into the habit of taking ketamine. It all started about a year before the present offence.

9.  For the present offence, the defendant said that he was asked to deliver those drugs and for that he would have free use of part of the present quantity of drugs as a reward.  It was also submitted for my consideration a letter written by a social worker of the Hong Kong Boys and Girls Association informing the court that the defendant was of a kind nature and that he was just foolish and was lured into committing the present offence, and the another asked the court to be as lenient as possible.

Sentencing considerations

10.  Trafficking in dangerous drugs is of course a very dangerous offence.  The maximum sentence is life imprisonment.  In the District Court, the maximum sentence is 7 years.  Therefore, anyone who is involved in trafficking activities, once caught, would expect to be dealt with severely by the court.

11.  The Court of Appeal has also said that family circumstances virtually played no part in the mitigation in this type of offence.

12.  Usually in sentencing offenders of trafficking in dangerous drugs, the most important consideration is the quantity of the drugs.  Here, in this charge, we are talking about both ketamine and cocaine, which the Court of Appeal had already laid down different tariffs for these two different types of drugs.

13.  According to the tariff for ketamine in the case of Secretary for Justice v Hii Siew Cheng [2008] 3 HKC 323, for a quantity between 10 to 15 grammes of ketamine, the proper starting point would be between 4 to 6 years’ imprisonment.

14.  In this charge, there are 12.5 grammes of ketamine.  According to the tariff, the proper starting point is about 50 months’ imprisonment.

15.  As for cocaine, the Court of Appeal had already, in the case of Attorney General v Rojas [1994] 1 HKC 342, decided that the sentencing guidelines for heroin are applicable to cocaine.  The guideline for heroin as laid down in the case of R v Lau Tak Ming and Others [1990] 2 HKLR 370 decided that for up to 10 grammes of heroin, the proper starting point would be 2 to 5 years’ imprisonment.

16.  Comparing these two guidelines, one can immediately see that cocaine is more potent and serious.  However, in this charge, the quantity of cocaine as compared to ketamine is relatively small.

17.  In order to sentence the defendant fairly, realistically and in a commonsense manner, I consider that in the end, the overall sentence after taking into account the presence of the relatively small quantity of cocaine would not be much affected even if I adopt the ratio test by converting the amount of cocaine into ketamine.

18.  However, I cannot overlook the fact that here we are dealing with two different types of drugs and the Court of Appeal has already said that trafficking in a variety of drugs is an aggravating factor, justifying an enhanced sentence.

19.  For this reason, I will still increase the starting point in this charge from 50 months to 54 months’ imprisonment.

20.  It is submitted that part of the drugs is for the defendant’s self-consumption.  In the case of Chow Chun Sang CACC 135/2011, the Court of Appeal said that a 10% to 25% reduction from the starting point can be made to take into account the fact that part of the drugs is for the defendant’s self‑consumption.  As to how much the starting point should be reduced, it is a matter which is entirely within the discretion of the sentencing judge after taking into account factors such as whether the defendant pleaded guilty, whether he has co‑operated with the police, and whether he has a clear criminal record.

21.  I bear all these factors into account and I consider that in this case, I can reduce the starting point by 9 months from 54 months to 45 months, which is a reduction of about 17%.

22.  The defendant pleaded guilty today which is the single most important and effective mitigation for which he should be entitled to a one-third discount.

23.  The defendant is 17 years old.  He is still young, but not extremely young.  Even though the defendant is still under 21, the Court of Appeal had recently just held that it would be wrong in principle for a sentencing judge to send a young defendant to a training centre for an offence of trafficking in dangerous drugs, as it will seriously undermine the deterrent effect of the sentence and will also indirectly encourage the syndicate behind to make use of the youngsters like the defendant and employ them to deliver the drugs.

24.  In the end, after taking all these factors into account, I will reduce the defendant’s sentence by one‑third from 45 months and the sentence that the defendant shall receive shall be 30 months’ imprisonment.