HKSAR v. LEE CHEUK HIN

DCCC 479/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.479 OF 2013

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Reasons for Sentence

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1. The defendant is 17 years old and pleaded guilty to 2 charges of trafficking in dangerous drugs.

Summary of Facts

Charge 1

2. The defendant was stopped and searched at about 7pm on 15^th March 2013 by Police officers who saw him acting furtively outside Shek Ping House, Long Ping Estate, Yuen Long. 17 small packets each containing dangerous drugs were found in his trousers pocket upon search, together with 3 mobile phones and cash of $5,391.50 on his person. The defendant admitted to the possession of the packets under caution.

3. The 17 small packets were later confirmed to contain 2 different dangerous drugs. 8 bags with a total of 7.12g of a powder containing 5.36g of ketamine and 9 bags with 2.07g of a solid containing 1.71g of cocaine.

Charge 2

4. The defendant was brought home for a house search. 1 packet and 33 packets containing dangerous drugs were found inside his bedroom. Small transparent plastic bags, a spoon and a digital scale were also found there. The defendant admitted under caution that all the dangerous drugs belonged to him, that he packed and sold them and that he used the spoon, the scale and the bags for packaging.

5. The one packet found in the defendant’s bedroom was confirmed to contain 12.2g of a powder containing 9.47g of ketamine, whereas the 33 plastic bags had a total of 8.88g of a solid containing 7.04g of cocaine.

6. A total of 13.83g of ketamine and 8.75g of cocaine are involved in this case. The street value of the ketamine involved is $2,338 and of the cocaine involved is $14,388.

7. In a video recorded interview conducted with the defendant in his father’s presence, the defendant admitted under caution that he bought the ketamine and the cocaine for $1,000 and $10,000 respectively on the evening of 14^th March 2013. He put the ketamine and the cocaine in 1g and 0.5g portions respectively in plastic bags for selling to others. He would sell the ketamine at $200 per gramme and the cocaine at $300 per 0.5g. He would go to the public housing estate where he lived to offer dangerous drugs to the people whom he was familiar with. On the day of the defendant’s arrest, he had just quit his job at a café for about a week and was unemployed at the time.

Previous conviction

8. The defendant is of previously clear record.

Mitigation

9. The defendant just turned 17 in June 2013, he was 16 at the time of the offence.

10. In view of the age of the defendant at the time of the commission of the offence, despite trafficking in dangerous drugs being an excepted offence, a Training Centre Report was called for prior to sentencing the defendant.

11. According to Officer Li, the defendant’s family members had paid regular visits to the defendant during his present remand.

12. The defendant’s studying began to suffer when he entered Form One. He did a few repeats and somehow managed to be promoted to Form Three in 2012. The defendant however was frequently absent and late and since late November 2012 had stopped going to school. It would appear that with all that spare time, he became acquainted with triad members and started smoking cocaine in December 2012.  All that led to his commission of the present offences. In order to support his drug usage, the defendant turned to becoming a drug peddler.

13. According to Officer Li, the defendant was ‘carefree in attitude’ during their interview and the defendant did not have any ‘deep sense of remorse’. The defendant told the officer that the defendant had earned some $40,000 from trafficking in drugs for a few weeks prior to his arrest in March 2013.

14. At the return hearing, I was told by Mr. Tso that the defendant did not wish to be sentenced to detention in the Training Centre.

Sentence tariffs

15. The sentencing tariffs for trafficking in ketamine are found in the case of Secretary for Justice v Hii Siew Cheng (許守城) [2009] 1 HKLRD 1, CAAR7/2006. The tariff for sentence after trial for traffickers in ketamine of between 1 to 10 gramme is that of 2 to 4 years’ imprisonment and between 10 to 50 gramme is that of 4 to 6 years’ imprisonment.

16. The sentencing tariffs for cocaine are found in R v Lau Tak Ming [1990] 2 HKLR 370 and Attorney General v Rojas [1994] 1 HKC 342. The tariff sentence for traffickers in cocaine of up to 10 gramme is that of 2 to 5 years’ imprisonment.

The defendant’s age

17. Trafficking in dangerous drugs is an excepted offence and as such, even though the defendant is 17 years old at the time of sentencing, s.109A of the Criminal Procedure Ordinance, Cap.221 does not apply and imprisonment need not be the last resort.

18. The defendant trafficked in quite a large quantity of dangerous drugs. There is no evidence as to where he got the money to purchase the dangerous drugs in the first place.

19. The defendant said he would sell the drugs to people whom he was familiar with. It must be an irresistible inference that he would therefore be selling drugs to his peers and possibly people of his age group, in other words, people who are very young. I find this an aggravating factor.

20. For trafficking in dangerous drugs, only cases involving “extreme youth” are dealt with differently. Being 17 year old is not of extreme youth. It must be noted that it was not the case that the defendant was asked by someone to deliver the dangerous drugs somewhere for a small monetary reward. The defendant bought the drugs himself from another person, and was doing the weighing and packaging of the dangerous drugs himself.

21. By the defendant’s own admission to Officer Li, the present offence was not his first time dabbling in selling drugs. He had made some $40,000 profits previously. The point is that the defendant knew clearly what he was doing and he was doing it in order to make some fast money.

22. I do not think a sentence in the Training Centre is appropriate because the defendant’s age did not fall into the category of extreme youth and also because of the amount of dangerous drugs involved as well as the circumstances the defendant committed the present offences.

Possible sentence under an individual approach

23. As Mr. Tso suggested, case law suggests that there can be 2 different approaches when dealing with the sentencing of charges involving multiple dangerous drugs of various amounts. For the sake of completeness, I have included the individual approach.

Charge 1

5.36g of ketamine would have attracted a tariff sentence of around 36 months’ imprisonment. 1.71g of cocaine would have attracted a tariff sentence of around 27 months’ imprisonment. After discount, the total sentence would have been 42 months’ imprisonment.

Charge 2

9.47g of ketamine would have attracted a tariff sentence of slightly more than 45 months’ imprisonment. 7.04g of cocaine would have attracted a tariff sentence of around 48 months’ imprisonment. After discount, the total sentence would have been 62 months’ imprisonment.

Possible sentence under a combined approach

24. This is the approach preferred by Mr. Tso for the defendant.

Charge 1

Cocaine being the more potent dangerous drug, the court should adopt a starting point of 30 months’ imprisonment first and then adjust it upwards by 12 months taking into consideration of the amount of ketamine, bring the total starting point to 42 months’ imprisonment. The discounted sentence would be 28 months’ imprisonment.

Charge 2

Again, based on 7.04g of cocaine, the court should adopt a starting point of 48 months’ imprisonment first and then adjust it upwards by 18 months to a total starting point of 66 months’ imprisonment. The discounted sentence would be 44 months’ imprisonment.

Sentence

25. A clear and strong message must be sent out to young people that they should stay away from drugs and if they choose to not only use drugs but to traffic in it, they will feel the full force of the law upon them, even if they are of previously clear record.

26. After careful consideration, I find the combined approach suggested and calculated by Mr. Tso most sensible and reasonable. I will therefore adopt a starting point of 42 months’ imprisonment for charge 1, and a starting point of 66 months’ imprisonment for charge 2, resulting in the discounted sentence of 28 and 44 months respectively.

Totality

27. I was referred by Mr. Tso to the case of HKSAR v Pau King Kong, CACC 465/2012 to assist me in determining the question of whether the first offence add to the culpability of the defendant.

28. Having stood back, taking into consideration all the circumstances of the case including the defendant’s background as revealed in the Training Centre report, and especially the age and clear record of the defendant, I find that the proper sentence to impose in this case is a concurrent sentence.

29. The defendant is sentenced to a total of 44 months’ imprisonment.