HKSAR v. YAM LOK LAM

DCCC 1028/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1028 OF 2015

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REASONS FOR SENTENCE

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INTRODUCTION

1.  On 12 January 2016, the defendant was convicted, on his own guilty plea, of one charge of trafficking in a dangerous drug, preferred under section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

FACTS

2.  On 11 September 2015, the defendant was seen pacing back and forth outside Shop 398 of New Town Plaza, Shatin.  He kept looking around in a furtive manner and fiddling with his mobile phone.  A police officer intercepted him and escorted him to a location near Route no.88X Bus Stop at Sha Tin Station Circuit, Shatin, New Territories.  Upon police enquiry, the defendant said he was waiting for a friend; however, he was unable to provide the police with further details.  The officer conducted a body search on him and found in his right, front trousers’ pocket a pink plastic bag containing 12 transparent, resealable plastic bags, each of which contained one transparent, resealable plastic bag with suspected dangerous drugs inside.  The defendant was arrested.  He said under caution that he was delivering the “K Chai” for others for $1,000 and that he was not selling it to others.  The suspected dangerous drugs were subsequently confirmed to be 76.2 grammes of a solid containing 34.4 grammes of ketamine, the street value of which was estimated to be $12,921.

MITIGATION

3.  Born in July 1996, the defendant is 19 years old and has had a clear record before his present conviction. He lives with his parents and elder brother.  He has received education up to Form Three level and was, at the time of the offence, a trainee mechanic.

4.  In his plea in mitigation, Mr Albert Szeto appearing for the defendant tenders to court several mitigation letters, contents of which are as follows.  The defendant expresses remorse for his wrongdoing, emphasizing that he has already completed two years of his apprenticeship in car mechanics and would, but for this transgression, become a qualified technician in a year’s time.  The defendant’s mother blames herself for failing to provide him with sufficient guidance.  The defendant’s former teacher at school and his current instructor at work describe him as a sincere and hard-working person who is eager to learn and always willing to help others.  The court is asked to pass as lenient a sentence on the defendant as possible.

5.  According to the Training Centre Suitability Report, the defendant was born to a working class family.  He has been an average student at primary level.  Not being able to adapt to his secondary school life, he repeated his Form One studies and has performed poorly in Form Two and Form Three.  He left school in July 2012 and began a diploma course in “Vocational Education (Automotive Technology)” in Youth College (Kwai Chung).  He completed that course in August 2013 and secured an apprenticeship contract with Zung Fu Company.  At the same time, he carried on his studies on a part-time-day-release basis in the same college.  He has behaved himself at work and has performed well in his studies.  The college has expressed willingness to reserve a place for him until 25 January 2016.  He has committed the present offence, says he, to make “fast and easy” money to support his hedonist lifestyle, a lifestyle that he has acquired under the influence of bad peers.

6.  Rehabilitation Officer Mr Billy Li of the Correctional Services Department is of the view that a period of disciplinary training, together with statutory supervision, would be beneficial to the defendant;  a Training Centre Order is recommended.  Mr Szeto submits that the defendant has engaged himself in this criminal act due to foolishness and very much out of character, and asks the court to take that into account in sentencing the defendant.

REASONS FOR SENTENCE

7.  The Court of Appeal held in SJ v Hii Siew Cheng[1] that the appropriate sentence after trial for trafficking in 10 to 50 grammes of ketamine should be four to six years’ imprisonment.  From this stringent sentence tariff, one can see that trafficking in ketamine is a serious offence.  Its seriousness arises from the fact that abuse of ketamine can result in serious problems to the abusers and thus to the society.  Expert evidence placed before the Court of Appeal in SJ v Hii Siew Cheng[2] shows that abusers of ketamine are prone to falling from height, drowning, and traffic accidents; their cardiovascular, respiratory, and central nervous systems can be adversely affected; they are observed to have schizophrenic behaviour; they often suffer from impairment of episodic and semantic memory, memory deficit, “flashbacks”, attention dysfunction, decreased sociability, chronic mood elevation, and severe lower urinary tract disorder.  Worse, abuse of ketamine is noted to have gained popularity in Hong Kong, particularly among drug abusers under 21.

8.  For the quantity of narcotics concerned, the appropriate starting point should be one of five years’ imprisonment.  Nevertheless, the defendant is still a young person of 19; he has pleaded guilty to express remorse; but for this single offending, the prospect of his successfully becoming a car mechanic seems promising; and he has the support of his family members (who are present at the sentencing hearing), the college he has attended, his instructor, and his former teacher.

9.  In sentencing a young offender, the court is required to give due consideration to his rehabilitation; a prison term should be reserved as the very last option.  In HKSAR v Wong Tsz Hin[3], the Court of Appeal said:

“… In view of the applicant’s young age and clear record and for the sake of the community, it is of importance that the applicant should be rehabilitated and a long term imprisonment may not be the best answer for his rehabilitation.”

10.  In the instant case, a Training Centre Order is most certainly conducive to the rehabilitation of the defendant and cannot, in any view, be considered as an unduly lenient sentence.  The maximum period of deprivation of liberty at a training centre is three years, and the defendant will be subject to a substantial period of post-release supervision.

11.  In all the circumstances of this case, a Training Centre Order would sufficiently address the general sentencing criteria of punishment, retribution and deterrence.

CONCLUSION

12.  For the offence of which he stands convicted, the defendant is sentenced to detention at a Training Centre.