HKSAR v. WONG HO SAN AND ANOTHER

DCCC 1046/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.1046 OF 2009

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Reasons for Sentence

1.  D1 and D2 face a joint charge of trafficking in dangerous drugs, contrary to s.4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134. It is alleged that they on 24^th July 2009, outside Tai Hing Roast Restaurant, Shop nos.26-31, ground floor, Charming Garden, no.8 Hoi Ting Road, Mongkok Kowloon, together with a person unknown, unlawfully trafficked in a dangerous drugs, namely 26.92 grammes of a powder containing 21.93 grammes of Ketamine.

2.  D2 faces an additional charge of possession of a dangerous drug, contrary to s.8(1)(a) and (2) of the Dangerous Drugs Ordinance. It is alleged that D2 on 24^th July 2009, inside the flat on rooftop of no.198 Portland Street, Mongkok, Kowloon, had in his possession a dangerous drug, namely 7.59 grammes of a powder containing 6 grammes of Ketamine.

3.  Both defendants pleaded guilty to their respective charges, admitted to the summary of facts and was duly convicted.

Facts

4.  In the small hours on 24^th July 2009, a team of police officers conducted an anti-dangerous drugs operation in the vicinity of Charming Garden. At around 1:28am, the police officers saw D1, D2 and another male outside Tai Hing Roast Restaurant. D1 and D2 were looking around and acting furtively the police officers intercepted them and conducted searches on them.

5.  Upon searching ,4 transparent re-sealable plastic bags of suspected Ketamine (exhibit P-1) wrapped with a piece of tissue paper were found inside the right front pocket of D1’s pants. At this juncture, D1 pointed at D2 and said that P-1 was given to him by D2. D2 remained silent. [charge 1 against D1 and D2]

6.  D1 and D2 were then arrested and cautioned. Under caution, D1 said that P-1 was given to him by D2 and he was asked to carry it with him for selling at Charming Garden, whereas D2 claimed that he did not give P-1 to D1.

7.  At a subsequent house search conducted inside D2’s residence at the address stated in charge 2, police officers found a cigarette case which contained a transparent re-sealable plastic bag of suspected Ketamine (exhibit P-2) and a number of empty re-sealable plastic bags. D2 was arrested and cautioned. Under caution, D2 claimed that P-2 was left there by his friend but admitted that he had consumed P-2 [charge 2 against D2].

D1’s video interview

8.  At a subsequent video recorded interview, D1 admitted, inter alia, that, he met up with a friend to play games at an amusement centre at around 11:25pm on 23^rd July 2009. They left at around 11:49pm and walked to Charming Garden when they met “bald man” and an unknown male whom he later learnt to be D2. “bald man” introduced D2 to D1.

9.  Earlier on, an unknown person who claimed to be a friend of D1’s firend called D1 to ask for Ketamine. So, whilst D1’s friend was away, D1 asked “bald man” if he had any Ketamine, to which “bald man” replied D2 could provide him. D1’s friend then returned and the 4 of them went to Jordan by taxi. D2 left them after arriving at Jordan, returning after around 5-8 minutes. “bald man” left after D2 returned.

10.  When D1’s friend walked away to fetch a taxi, D2 gave the P-1 dangerous drugs to D1. The 3 of them then travelled back to Charming Garden by taxi.

11.  D2 asked D1 to keep P-1 for selling at Charming Garden later. D1’s friend knew nothing about the dangerous drugs and the dealing between D2 and D1.

D2’s video interview

12.  At a subsequent video recorded interview, D2 admitted, inter alia, that, D2 met up with a casual friend “Ah Ho” at an amusement centre in Mongkok on 23^rd July 2009. After playing for a while, Ah Ho asked D2 to go out together to do something. They travelled first to Charming Garden by taxi, where D1 and his friend joined them in the taxi and the 4 of them then went to Jordan together. It was the first time D2 met D1 and his friend.

13.  After arriving at Jordan, Ah Ho left for around 20 minutes. D2 later learned from D1 that they had asked Ah Ho for Ketamine. Ah Ho returned later on and asked D2 to go to Charming Garden with D1 and his friend to sell Ketamine. Ah Ho asked D2 to collect $800 from D1 and his friend, which was the intended proceeds of selling Ketamine. Ah Ho told D2 to wait for his instructions after receiving the $800. D2 had no means to contact Ah Ho. D2 did not see Ah Ho pass on the P-1 dangerous drugs to D1 or his friend and he denied having any physical contact with the dangerous drugs P-1.

D2’s 2^nd video recorded interview:

14.  In relation to charge 2, D2 disclosed in the interview that he met a casual friend “Ah Kai” at an amusement centre in Mongkok about a week ago. “Ah Kai” went up to D2’s home and took out the P-2 dangerous drugs and the 2 of them consumed P-2 together. P-2 and the empty transparent re-sealable plastic bags belonged to “Ah Kai” and they were left behind at his home by “Ah Kai”. It was however D2 put them into a cigarette case. D2 explained that he had been unemployed for around one month, had worked in a restaurant in the past and his monthly earnings was then around $7,000. D2 took up Ketamine in July 2009, usually provided to him by his friends free of charge.

Previous convictions

15.  D1 is of clear record. D2 has one previous conviction for attempting to obtain property by deception where he was sentenced to detention in the Detention Centre in October 2009. D2 committed the present offence whilst on bail for the other.

Mitigation:

D1

16.  D1 is 15 years old and was only 14 years old when the offence was committed. Although charge 1 is an excepted offence, given the youth of the defendant, various reports were called for pending his sentence. I shall not repeat the contents of the reports here, save to say that they are positive with the defendant showing great remorse and the officer of the correctional unit considers the defendant suitable for detention in a Detention Centre.

17.  D1 lives with his mother, elder sister and young brother. Since 2004, the father ceased to support the family, leaving the burden solely on the defendant’s mother. They have to rely on social assistance at around $4,000 to $5,000 per month. The relationship between the defendant and his mother is very good. It was put forward in mitigation that the defendant had foolishly thought to make some quick money to help bear his mother’s burden.

18.  A letter written by the defendant to his mother is also submitted. The defendant’s mother showed deep concern for the defendant. She found that he had failed to give him the required guidance.

D2

19.  D2 is 23. He was born in Guangdong and came to Hong Kong in 1999. 2 letters were submitted in mitigation, one written by the defendant and one by his father. The letters provided reasonably detailed background of the defendant.

20.  Since coming to Hong Kong, and after his education, D2 had been working hard to earn a living, either as bread making apprentice, warehouse worker or bartender. D2 would give about half of his earnings to his father who suffered an illness to his spine and is no longer able to work. D2’s mother is 46 and is living in mainland China with the defendant’s sister and brother who are both in their 20s. The defendant however is not close to them.

21.  The defendant confirmed his previous conviction and admitted that he committed the present offence whilst on bail for the previous offence. In the previous case, the defendant had picked up a credit card and tried to use it and was sentenced to the Detention Centre.

22.  In mitigation, counsel for the defendant submitted that the drugs belonged to D2’s friend, that D2 was asked on the day by his friend “Ah Ho” or ”bald man” to collect money for him with no financial gain for D2 himself. D2 now realized it was stupid of him to do so and he accepted that he is guilty in law of trafficking.

23.  In relation to charge 2, it is D2’s mitigation that he had immediately confessed to the police that the dangerous drugs belonged to his friend. Mr. Lee for D2 invited the court to accept that there was no latent risk of distribution of the drugs found in D2’s apartment, since the drugs was left by his friend and he himself was a Ketamine user, and had been so for about 6 months, with average consumption of about 0.5g per session, twice every month.

24.  Mr. Lee had very appropriately explained the tariff in Hii Siew Cheng to the defendant. Mr. Lee drew this court’s attention to the fact that the defendant had been someone of clear record for the previous 22 years, and that he just made 2 very bad judgment calls within a short 2 month period. The defendant was obviously influenced by undesirable peers. Finally, the defendant wishes to be able to continue his training in the Detention Centre and upon his release to look after his father.

D2’s sentence

Sentencing tariff

25.  The sentencing tariff as set out in Secretary for Justice v Hii Siew Cheng (許守城) [2009] 1 HKLRD 1, CAAR7/2006 applies:

“95. We indicate the following tariffs for sentence after trial for traffickers in ketamine and ecstasy:

(3)  10 to 50 grammes – 4 to 6 years’ imprisonment”

26.  Given the quantity of dangerous drugs in charge 1 of the present case of 21.93g of Ketamine, a proper application of the tariff would yield a starting point of slightly more than 54 months’ imprisonment. For the purpose of this case, I find that an appropriate starting point would be 54 months’ imprisonment.

27.  I give the defendant full discount for his guilty plea and reduce that sentence to 36 months’ imprisonment. I do not see any other mitigating factors to further reduce this sentence. Although the defendant is still young, it is not a case of extreme youth. As to the situation of the defendant’s father, he had known about his health before the commission of the first crime, let alone the second. There is only the defendant himself to blame.

28.  The quantity of the narcotics involved as well as the degree of participation of the defendant means that the Detention Centre is no longer the suitable place for the defendant to receive his punishment. There is also the matter of deterrence for me to consider. The correct message must be sent out to all young people and those who seek to exploit them that should the young people choose to traffic in dangerous drugs, their relatively young age will not excuse them from a lengthy term of imprisonment.

29.  In relation to charge 2, I do not find that there is a latent risk of distribution. I will adopt a starting point of 9 months’ imprisonment, reducing that to 6 months’ imprisonment upon the defendant’s guilty plea.

30.  Having considered the matter of totality, I will order that 3 months of charge 2 be served consecutively to the sentence in charge 1, making a total of 39 months’ imprisonment for both charges.

31.  D2’s present detention centre order to be deemed to have lapsed by virtue of s.7(1)(b) of the Detention Centres Ordinance, Cap.239.

D1’s Sentence

32.  Given the young age of D1 when he committed the present offence, but more importantly, having read the reports prepared on the defendant, having seen and heard from the defendant in court, having read the letter that the defendant wrote to his mother, I find that he has shown true remorse.

33.  I understand the defendant’s difficulty of growing up in a single parent family and that he must have felt confused and let down. Although the crime that the defendant has committed is very serious, given the facts, I find that he was most likely influenced by his older peers. I find that the defendant had learned from this bad experience. I agree with the observations and recommendation of the Rehabilitation Unit Officer that a period of intense physical training would instill a sense of discipline in the defendant and hopefully assist him in the future conduct of his behaviour after release. I am of course mindful of the sentencing guidelines in Hii Siew Cheng, but I have been assured by Ms. Ma for the prosecution that there are no authorities to prevent me from imposing such an order on the defendant in offences of this kind.

34.  I would like to make clear that the court is not condoning the use of young person to assist in the trafficking of dangerous drugs, but in sentencing, the court has to balance between deterrence and the personal circumstances of the defendant. In this case, there is clear indication that the defendant is someone who has shown true remorse and deserving of a chance.

35.  Therefore, in relation to charge 1, I will sentence D1 to a period of detention in the Detention Centre. The defendant is 15 years old at the time of sentence. I have warned the defendant that should he not behave himself in detention, he will be brought back in front of me and I will have no hesitation in sending him to jail for a long period.