HKSAR v. SINE WAI YIN

DCCC5/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 5 OF 2013

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Reasons for Sentence

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1.   The defendant pleads guilty to one charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134, Laws of Hong Kong. 

Facts

2.   About 6 p.m. on 28 September 2012, police officer stopped the defendant in the street and found that he had concealed inside his underpants a plastic bag containing 8 transparent plastic bags with white powder inside.  The defendant was then arrested for possession of dangerous drugs.  Under caution, the defendant said that those drugs were ketamine for his own consumption.  A search was conducted at his home subsequently.  No apparatus or equipment for consumption of dangerous drugs was found.

3.   Upon examination by the forensic scientist, those 8 transparent plastic bags were found to contain a total of 11.20 grammes of a powder containing 8.94 grammes of ketamine.  The estimated street value of the drugs was HK$1,171.14.

4.   Although the defendant had said under caution that he had the drugs for own consumption, he confirmed when he pleaded guilty that he trafficked in the drugs and that he withdrew what he had said under caution.

Criminal record

5.   The defendant has a clear record.

Personal and family background

6.   The defendant was born on 25 February 1995 in the mainland.  His parents divorced when he was 2 years old.  At the age of 7, he settled in Hong Kong.  He is now living with his mother.  His other relative in Hong Kong is his grandmother. He received education up to Form 3.  He ceased his schooling in July 2012. Thereafter he worked as a delivery worker and a restaurant worker.

7.   The defendant has good general health except that he has hearing difficulty with his right ear.  He sustained this disability from an accidental fall when he was 2 years old.  The defendant’s mother is suffering from depression and asthma.  She is therefore unable to work, and has to live on social security assistance.

Pre-sentencing reports

8.   According to the background report prepared by the probation officer, the defendant admitted that he agreed to deliver the drugs for his friend Ah Lok so as to earn a reward of $480 due to his greed and his ignorance of the serious consequences of the offence. 

9.   According to the report from the Correctional Services, the defendant is not suitable for detention in a detention centre because he is underweight and he has a hearing problem.  He is however physically and mentally fit for detention in a Training Centre or in a Rehabilitation Centre.  The Commissioner of Correctional Services considers that the defendant is more suitable for detention in a Rehabilitation Centre.

Mitigation

10.   According to Mr. Wong, counsel for the defendant, the defendant committed the offence because of his family background, his failure to catch up with his studies, his association with undesirable peers, his inability to sustain a living, and his desire to earn quick money.  However, since his arrest and whilst on bail, the defendant cut off his tie with his undesirable peers and vowed not to see them again.  He also avoided late night activities and worked hard as a part time restaurant worker. Mr. Wong stresses that the defendant pleads guilty to the offence, and is very remorseful.  He says that the defendant is determined to turn a new leaf, and has planned to equip himself by learning mechanical and electrical engineering upon his discharge from custody.  Mr. Wong also produces mitigation letters from the defendant, his mother and grandmother who are very supportive of the defendant.  Mr. Wong points out that the defendant was only 17 years old at the time of the offence, and that he is not hopeless in light of the efforts he had made after the offence for turning a new leaf.  Mr. Wong urges this Court to order the defendant to be detained in a Rehabilitation Centre so that he will receive the necessary training and be instilled a sense of discipline.

Reasons for sentence

11.   Trafficking in dangerous drugs is a very serious offence.  The usual sentencing option is imprisonment, unless there are particularly special circumstances in the case, or there are exceptionally strong mitigating factor. 

12.   When I acceded to counsel’s request to call for reports from the Correctional Services, I had made it clear that the whole exercise was to equip counsel with all the materials that he might wish to have to put forward his mitigation, and that the Court might not accept any recommendation from the Commissioner of Correctional Services because imprisonment was the most likely form of sentencing option in light of the gravity of the offence.

13.   I have considered everything that has been urged upon me by defence counsel.  The defendant came from a broken family.  It is clear that he did not have sufficient parental guidance and that he did not do well in his studies.  He then associated with undesirable peers who led him into commission of the present offence.  He is clearly a member of the less privileged group, but his upbringing is by no means uncommon.  He also committed the offence out of greed to earn quick money.  When the defendant committed the offence, he was 3 days short of 18 years old.  He was young, but he was not within the “extreme youth” category: Attorney General v Yau Wing Hong [1995] 3 HKC 95.  Furthermore, for a serious offence of trafficking in dangerous drugs, youth alone can hardly be regarded as a mitigating factor: Secretary for Justice v Yau Si Ho (CAAR7/1999).  Although the defendant is suitable for admission to a Training Centre or a Rehabilitation Centre, it has been reiterated by the Court of Appeal that it is “only in rare cases detention in a training centre is appropriate on a conviction for drug trafficking”: AG v Kong Kin Man [1997] 1 HKC 537; Secretary for Justice v Ko Fei Tat [2002] 4 HKC 59; Secretary for Justice v Ng Shing Kit [2012] 5 HKLRD 297.  All in all, there are no special circumstances or exceptionally strong mitigating factors that enable this court to rely upon to sentence the defendant to a Rehabilitation Centre or a Training Centre.  I rule that imprisonment is the only appropriate sentencing option.

14.   As far as the quantum is concerned, the Court of Appeal has laid down a sentencing tariff in the case of HKSAR v Hii Siew Cheng [2009] 1 HKLRD 1.  For trafficking in over 1 gramme to 10 grammes of ketamine, the proper starting point is imprisonment for 2 to 4 years. 

15.   In the present case, the defendant trafficked in 8.94 grammes of ketamine.  I find the proper starting point to be 40 months’ imprisonment.

16.   As far as mitigating factors are concerned, the defendant will of course be given credit for his guilty plea.  In the normal course of event, he would only be entitled to have his sentence reduced by one third because of this mitigating factor. However, I take into account the fact that there was no direct evidence of trafficking in this case, and that the defendant had been honest enough not to run a defence which could have been open to him by retracting what he had said under caution that the drugs were for his own consumption.  I shall give him a discount of 40% which I think is the maximum discount permissible under the circumstances.  There is no other factor that works to reduce the sentence further.

17.   For these reasons, I sentence the defendant to imprisonment for 24 months.