HKSAR v. CHAN TSZ HO

DCCC 414/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 414 OF 2012

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Reasons for Sentence

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1.  The defendant has pleaded guilty before me to one charge of trafficking in a dangerous drug, namely 59.50 grammes of a powder containing 47.90 grammes of ketamine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.  The facts admitted by the defendant revealed that at about 5.13 pm on 16^th January, 2012, the police were carrying out duties at the junction of Carnarvon Road and Cameron Road, Tsim Sha Tsui. A private car stopped at the junction.  The police approached the car and saw the defendant sitting at the front passenger seat, holding a brown paper bag.  As the defendant was behaving suspiciously, the police requested for a search.  The defendant initially refused to co-operate but later got out of the car.  Upon search, 2 plastic bags, one of which also had a plastic spoon, containing a total of 59.50 grammes of a powder containing 47.90 grammes of ketamine and 5 resealable plastic bags were found inside the brown paper bag the defendant was carrying.  The defendant was arrested and cautioned and remained silent after caution.  The estimated street value of the dangerous drugs in question was HK$6,307.00.  He possessed these dangerous drugs for the purpose of trafficking.

3.  Section 109A of the Criminal Procedure Ordinance, Cap 221, provides that no court shall sentence a person of or over the age of 16 years and under 21 years of age to imprisonment unless the court is of the opinion that no other method of dealing with such person is appropriate.  This provision, however, does not apply to offences of trafficking in dangerous drugs, which are excepted offences.  Although the offence to which the defendant pleaded guilty is an excepted offence in Schedule 3 of the Criminal Procedure Ordinance, Cap 221, and section 109A is not applicable, the court must still consider how best it is to deal with him, given the nature and circumstances of the offence, the interest of the community, the defendant’s character and previous conduct and such

4.  I adjourned sentence until today, so that I could have the advantage of a Background Report and Training Centre Report from the Correctional Services Department.  I did, however, emphasize to the defendant that I was keeping all options of sentence open to myself including a custodial sentence.  These reports are now before me and I have carefully considered their contents.  I have also borne in mind all that has been urged upon me on behalf of the defendant.

5.  I do bear in mind the classical principles of sentencing and balance amongst the need for rehabilitation, retribution, deterrence and prevention.  Whilst rehabilitation for a young offender is always an important consideration, and it also serves the interest of the community, the need for punishment of the offender and deterrence of others must be given due regard, and in most circumstances, for offences of this nature, they best serve the interests of the community as a whole.  The appeal courts have made clear that save in very rare cases, a training centre order should not be imposed for trafficking in substantial quantities of dangerous drugs.  Here, the quantity is substantial.  The defendant would have been fully aware of the gravity of what he was doing and the risks that would be involved if he was apprehended.  The appeal courts have consistently held that for the offence of trafficking in dangerous drugs, unless it is a case of extreme youth, young age carries little weight in mitigation. In the present case, the defendant was and is not a person of extreme youth.  Deterrence is an important factor in sentencing for this nature of offence and the courts should not only have regard to the rehabilitation needs of the defendant.

6.  The defendant is now aged 16 years.  He is the only child of his parents.  He was born in China and came to Hong Kong with his mother in 1998 for family reunion.  However, because of marital problems, his parents divorced in 2004.  The mother re-married in 2007, and the defendant lived with his mother and step-father prior to his incarceration.  The defendant gets along well with his step-father, who presently is undergoing treatment for lung cancer, as the documents submitted to me by counsel show.  He dropped out of school in 2011 without finishing Form 4.  He did not have a steady job.  Prior to his arrest for the present offence, he worked part-time as a roasted meat apprentice at a Chinese cuisine restaurant.  The defendant got involved with undesirable peers and was brought into the Sun Yee On Triad Society and had a triad protector. He started to take ketamine in July 2011 and even tried cocaine.  To sustain his drug habit and daily expenses, he engaged in drug trafficking activities occasionally.  He was arrested by the police on 11 September, 2011 for an offence of possession of dangerous drugs and released on bail.  He committed the present offence on 11 January, 2012, whilst on bail for that matter.  He was convicted of the offence of possession of dangerous drugs on 5 March, 2012, and sentenced to the Drug Addiction Treatment Centre. He is presently serving that DATC Order.  The medical officer is of the opinion that the defendant is a drug dependant and therefore is not suitable for detention in a Training Centre, but is recommended for admission to a Drug Addiction Treatment Centre.

7.  A lenient sentence is sought on behalf of the defendant.  His mother and step-father and other family members are in court today to show their support for the defendant.  An exchange of letters between the defendant and his mother and step-father have been submitted wherein the defendant has expressed his deep regret and remorse for what he has done.   A letter from Mr. Leung Kwok Ki of the  Hong Kong Christian Kun Sun Association Ltd. has also been submitted, urging leniency on behalf of the defendant, and Mr Li also came to court to show his support for the defendant.

8.  Save for his plea of guilty, there is really little else in mitigation before me.

9.  In the Secretary for Justice v Hii Siew Cheng & Anor [2009] 1 HKLRD 1, the Court of Appeal laid down the tariffs for trafficking in ketamine.  For trafficking 10 to 50 grammes of ketamine, a term of imprisonment of between 4 to 6 years is called for.

10.  In the instant case, the ketamine involved is 47.90 grammes, close to the upper limit.  For this quantity, I would consider a starting point of 5 ½ years, that is 66 months, to be appropriate if a term of imprisonment were to be imposed. The court has said time and again that there is a need for deterrence when dealing with offences like trafficking in a dangerous drug, and that young age carries little weight in mitigation.  I have taken into account, as I have said, the contents of the reports before me.  I note that the defendant is not considered suitable for the Training Centre as he continues to be a drug dependant.  Although the DATC has been recommended, in my view it is not appropriate here in the circumstances of the offence and of the defendant to make a DATC Order.

11.  In the present case, the matters urged upon me cannot detract from the fact that a deterrent sentence is called for as our society needs to get the message that trafficking in a dangerous drug is a very serious offence. I have full sympathy with the defendant’s family situation. Nonetheless, drug trafficking offences do call for substantial custodial sentences.  Having considered the quantity of ketamine involved in this case and the defendant’s personal background including his age, I am minded to adopt a starting point of 5 years.  In light of the defendant’s guilty plea, I shall give him the usual discount of one-third. I do not see any other mitigating factors that warrant any further reduction in sentence.  As to the defendant’s drug addiction, he can be given treatment for this even in prison.

12.  The defendant is sentenced to 3 years and 4 months’ imprisonment, that is 40 months’ imprisonment.