HKSAR v. CHIM TSZ KI

 DCCC675/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 675 OF 2009

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Reasons for Sentence

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1.  Defendant, you have pleaded guilty to an offence of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance.  You have also pleaded guilty to an offence of possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the same Ordinance.

2.  You admitted that on the 14th day of April you trafficked in 46.41 grammes of a powder containing 27.78 grammes of ketamine at the Ground Floor of Sau Lam House, Tsui Lam Estate, Tseung Kwan O, and on the same day at the Tseung Kwan O Police Station you possessed 1.42 grammes of a powder containing 0.81 grammes of ketamine.

3.  At about 6.30 pm on 14 April 2009, police officers saw you acting furtively and approached you to stop you.  As they had seen you placing your right hand on your rear trouser pocket, they asked you what your rear trouser pocket was containing.  You then took out 4 plastic bags containing 16 plastic bags of ketamine.  The officers arrested you and cautioned you for trafficking in a dangerous drug.  Under caution, you said someone had asked you to carry the K-chai to an unknown person in Tsui Lam Estate and you asked for a chance.

4.  Later that day, after you were taken to the Tseung Kwan O Police Station and upon search before detention, the drugs in relation to Charge 2 was found tucked inside your inner pocket of your left front trousers.  Under caution, you said, “I hid one of the packets of ketamine for my own consumption later.” 

5.  Under caution, you stated that you met a male called Ah Tong in an amusement games centre in Mongkok.  On the day in question at about 5.30 pm, Ah Tong asked you to take this ketamine and hand it to an unknown male who would approach you.  That male would then give you $3,000 and you would then receive an award of $900.  You then did as he told you to and took a taxi to Tsui Lam Estate.  This was the first time you had trafficked in drugs.

6.  You are 18 years of age and have a clear record.  You received a Superintendent’s Discretion some 5 years ago for theft when you were a young juvenile.  

7.  Prior to sentencing you, I called for a background report and a Training Centre report.  Your solicitor, Mr Lee, has made full mitigation on your behalf and I have taken into consideration what he has had to say.  As he rightly reflects this is a very serious offence and he tells me that you were very shocked about the serious consequences of your offence.

8.  For this type of offence, the guidelines for the amount of drugs that you had trafficked in fall into the category of 10 to 50 grammes and a bracket of 4 to 6 years’ imprisonment.  You had trafficked in 27.78 grammes of ketamine.  Generally speaking, if this was to be a conviction after trial, a sentence of approximately 4½ years’ imprisonment would be a starting point.  After a plea of guilty, that sentence would then be reduced, giving you full credit to your plea, to one of 3 years’ imprisonment.

9.  Mr Lee has indicated to me that his instructions are that despite the recommendation in the Training Centre report that there is a place available for you at the Training Centre, you wish to be sentenced to imprisonment.  That is because you have been in custody since April this year, that is, the last approximately 4 months, and you wish that to be taken into account when you serve your sentence.

10.  The question here is, is a sentence of imprisonment appropriate or that of a Training Centre?  In the case of The Secretary for Justice v Ko Fei Tat, CAAR 15 of 2005, the Court of Appeal dealt with this point as to whether a sentence to Training Centre or imprisonment was appropriate.  In that case, the Secretary for Justice applied to review a sentence of a Training Centre order imposed upon the defendant on a count of trafficking in dangerous drugs.  The Secretary for Justice said that that was wrong in principle.

11.  In reviewing whether a Training Centre should be imposed, the court referred to the case of Lau Tak Ming where it said:

“It must be borne in mind that these are offences of the utmost gravity which may well result in mitigating factors which for less serious offences would lead to a discount having little weight.  By this we mean age and disability, though extreme youth may call for a special consideration.  Drug dealers are notorious for attempting to elicit sympathy from the courts for their middlemen by the use of the blind, the maimed, the old, the young and the aged in the carrying out of their nefarious trade.”

12.  The court said that save in very rare cases a Training Centre order for trafficking in substantial quantities of drugs should not be imposed.  Age, whether youth or old age, carried little weight in trafficking offences.  There was considerable public interest involved in showing by deterrent sentences that the court would treat drug trafficking most severely.

13.  I note that there is public interest involved in showing deterrent sentences that will be passed by the courts for drug offences.  In this case, the total sentence after trial would be 3 years’ imprisonment after a plea of guilty.  The time for Training Centre is up to 3 years’ custody.

14.  The defendant is a young person of 18 years of age, of clear record.  She has not had any serious misbehaviour observed during her previous years.  As a result of her leaving school she has associated with some dubious people.  She remained idle at home and maintained a loose life attitude.  Although she worked as a junior hair salon waitress for a while, she remained idle for most of her time.

15.  It appears to me that the defendant here, as in the case of Kwong King Man, has embarked on a case of where a young woman has momentarily come under the influence of a more dubious and experienced companion.  She has not embarked upon a calculated course of criminal conduct.  In those circumstances, I am of the view that a rehabilitative sentence for the defendant is more appropriate than a sentence of imprisonment.

16.  I therefore sentence you to a Training Centre for Charges 1 and 2.