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DCCC 743/2014
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 743 OF 2014
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| Before: |
Deputy District Judge Terence Wai |
| Date: |
21 October 2014 at 2:30 am |
| Present: |
Mr Karl Chu, Public Prosecutor, of the Department of Justice, for HKSAR
Mr Law Sai Man, Simon, of Tam & Partners, assigned by the Director of Legal Aid, for defendant |
| Offence: |
Trafficking in dangerous drug(販運危險藥物) |
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REASONS FOR SENTENCE
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1. The defendant pleaded guilty to one charge of trafficking in a dangerous drug, contrary to s 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.
Facts
2. Around 4:33 pm on 27 June 2014, DPC 8120 found a purple plastic bag in a cabinet housing the fire hose reel on the 9th floor of Yiu Kwai House, Yiu Tung Estate, Shau Kei Wan, Hong Kong. The purple plastic bag was found to contain 16 transparent re-sealable plastic bags in which there were 95 plastic bags containing a total of 0.23 kilogramme of a solid containing 0.12 kilogramme of ketamine. The police laid ambrush in the vicinity after putting the purple plastic bag and its contents back in their original position.
3. Around 4:37 pm on the same day, the defendant went to the cabinet and retrieved the purple plastic bag. He was intercepted and arrested by the police when he opened the plastic bag and took a look at its contents.
4. Upon his arrest, the defendant admitted under caution that he had picked up the drugs for a monetary reward pursuant to the instructions someone called of “Ah Sing”. He repeated this admission in a subsequent video-recorded interview and added that he had been promised a award of HK$1,000, that he knew the plastic bag contained ketamine and that he was to await Ah Sing’s instructions after picking up the plastic bag.
5. The ketamine in question had an estimated street value of HK$27,140.
Mitigation
6. The defendant is now 18 years old, as was his age at the time of the offence. He is the only son in a working class family. He dropped out of school in the early part of this year without completing Form 4, which he repeated twice. He was not working at the time of the offence. He has a clear record.
7. On the defendant’s behalf, Mr Law urged the court to adopt the recommendation set out in the Training Centre Report, on account of the defendant’s age, his clear record, and his plea of guilty. Mr Law said the defendant’s remorse was also reflected in the contents of the two Reports.
8. The 5 mitigation letters submitted during the course of mitigation paint the picture of the defendant as a young man with a good nature, who has been somewhat spoiled by over-indulgent parents, who has a low esteem of himself resulting from his renal problems and his inability to catch up at school, and who went astray under the influence of undesirable peers, leading to his present breach of the law.
Reasons for sentence
9. In view of this defendant’s age, his clear record and his decent family background, I called for a Background Report and a Training Centre Report.
10. When calling for these Reports, I made it clear that a training centre order is an exceptional kind of sentence for this kind of offence, that I was merely giving myself more sentencing options, and that I was not making any promises as to the type of sentence to be imposed. I also made it clear to the defendant that the norm for this kind of case is a rather lengthy period of imprisonment.
11. The reports are now available. I have considered their contents, along with mitigation submissions and the various mitigation letters.
12. The Background Report discloses that the defendant grew up in a working class family with an uneventful childhood. He began to turn wayward by engaging in nocturnal activities, smoking cigarettes, playing truant and being late for school in his secondary school years. His parents felt helpless in disciplining the defendant. Out of greed, the defendant committed the present offence for fast money.
13. The Training Centre Report offers more or less the same information about the defendant’s background. This report goes further to say that the defendant joined the “Wo Shing Wo” triad society around 2012, and started engaging in “drug peddling activities”, mainly involving ketamine, in March 2014 through introduction of his triad peers. His greediness for easy money eventually led him to the commission of the present offence.
14. The defendant’s parents were shocked when they learned about the defendant’s arrest for the present offence, and are sad and worried about him. They ask that a chance be given to their son for rehabilitation in a training centre.
15. It is clear from these two reports that despite the defendant’s normal and rather uneventful upbringing, he started to go astray in his secondary school years and voluntarily took part in the delivery of dangerous drugs for a financial reward. In doing so, he was driven purely by greed with the realization that what he did was illegal.
16. Despite the intake officer’s recommendation that the defendant is suitable for detention in a training centre, I note that there is nothing unusual or exceptional either about the defendant’s background, or about the circumstances under which he committed the present offence.
17. The Court of Appeal in AG v Suen Yuen Ming [1989] 2 HKLR 403, at p 405 said:-
“we would repeat and stress that it is only in very rare cases, such as we think this to be, that a training centre order would be considered a proper sentence where substantial quantities of dangerous drugs are involved.”
18. Litton V-P in AG v Kong Kin Man [1997] HKLRD 350 also pointed out that “the authorities on sentencing clearly establish that age – whether youth or old age – carry little weight when drug trafficking is concerned. It is only in rare cases that detention in a training centre is appropriate on conviction for drug trafficking: see in particular AG v Suen Yeun Ming [1989] 2 HKLR 403. There is considerable public interest involved in showing by deterrent sentences that the courts will treat drug trafficking most severely.”
19. In Secretary for Justice v Ko Fei Tat CAAR 15/2001, the Court of Appeal pointed out “the well-established principle of imposing deterrent sentences in Hong Kong” for trafficking in substantial quantities of dangerous drugs. In that case, the Court of Appeal, considering that there were no exceptional circumstances, set aside the Training Centre Order made by the trial judge and replaced it with a sentence of 4½ years imprisonment on a trafficker who was nearby 17 years old at the time of the offences.
20. In the absence of rare and exceptional circumstances in our case, and in light of the above authorities, a sentence of imprisonment is the proper sentence.
21. According to Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, which laid down sentencing guidelines for trafficking in ketamine, the tariff for trafficking in 50 to 300 grammes of ketamine is 6 to 9 years imprisonment. Given the amount of ketamine involved in this case, a starting point towards the lower end of the range of 6 to 9 years would be appropriate.
22. For the 0.12 Kg of ketamine that the defendant trafficked in, I would adopt a starting point of 6 years 3 months.
23. Apart from his plea of guilty, there are no other mitigating factors which warrant a reduction of this starting point. In this kind of case, his age and clear record pale into insignificance against the seriousness of the offence.
24. Giving the defendant the usual 1/3 discount for his plea of guilty, his sentence after plea would be one of 50 months imprisonment.
25. The defendant is sentenced to 4 years 2 months imprisonment.
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( Terence Wai )
Deputy District Judge
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