HKSAR v. TSANG HIN CHUNG

DCCC 657/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 657 OF 2014

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REASONS FOR SENTENCE

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1.  Tsang Hin Chung you have pleaded guilty to one charge of trafficking in 147.70 grammes of a powder containing 99.10 grammes of ketamine, contrary to section 4 of the Dangerous Drugs Ordinance, Chapter 134.

2.  In summary around 9:24 p.m. on the 28 May this year the police intercepted you as you walked hurriedly out of Yat Wan House, in Tin Yat Estate, Tin Shui Wai. The police searched your bag and found 21 re-sealable plastic bags containing the ketamine.  The police also found $2,920 and a mobile phone.  The estimated street value of the ketamine was about $17,428.

3.  I have carefully considered everything said on your behalf by Mr Ho.  I have read the letters of mitigation written by your parents and younger brother together with your letter.  I take into account that you had just turned 18 at the time of the offence and have no previous convictions for drug offences. 

4.  In Secretary for Justice v Hii Siew Cheng[2008] 3 HKC 325 the Court of Appeal laid down guidelines for trafficking in ketamine.  Where the narcotic content is between 50 and 300 grammes sentence after trial falls within the range of 6-9 years imprisonment.

5.  Section 109A of the Criminal Procedure Ordinance, Chapter 221 provides no court shall sentence a person of or over 16 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.  Whilst this provision does not apply to trafficking in a dangerous drug, which is an excepted offence, a court must exercise great care before committing a young offender to prison. 

6.  I therefore called for a training centre suitability report to provide me with further information about you, in particular as to your performance whilst on probation and whether or not you are a drug addict.  I have carefully considered the content of this report.

7.  The reportreveals that under the influence of triad peers you first took ketamine in late 2011 followed by cocaine in 2012 and ice in 2013.  Earlier this year, at a time when you were unemployed, you agreed with the suggestion of your triad peer to distribute drugsso as to earn fast money.

8.  In order to help you develop more insight into your problems and strengthen your law-abiding mindset the Rehabilitation Assessment Officer of the Pik Uk Correctional Institution is of the view that a period of comprehensive disciplinary training coupled with statutory supervision might be beneficial to you.  Mr Ho asks that I follow the recommendation although I note you told the officer that you hoped a term of imprisonment would be imposed.

9.  When calling for the report I warned you that the appeal courts have made very clear that save in very rare cases a training centre order should not be imposed for trafficking in substantial quantities of dangerous drugs (see Secretary for Justice v Ko Fei Tat [2002] 4 HKC 59 and Secretary for Justice v Lau Shing Kit [2012] 5 HKLRD 297).  

10.  In Lau Shing Kit the trial judge imposed a training centre order for trafficking in 183 grammes of ketamine committed by a 17 year old.  Although the Court of Appeal dismissed the application for a review of sentence due to the exceptional circumstances of the case the court said a sentence of imprisonment in the region of 4½ years, after plea, ought to have been imposed.  Mr Ho’s reliance on Lau Shing Kit to support the submission that a training centre should be imposed in this case because the defendant is also young is misconceived. 

11.  After very careful consideration I am satisfied that this is not one of those very rare cases where a training centre order would be appropriate.  Notwithstanding your young age and that you have spent over four months in custody I am satisfied there are no exceptional circumstances warranting departure from the guidelines.

12.  Although you told the police the ketamine was for your own consumption you have confirmed in court that all the drugs were for trafficking with none to be kept for your own consumption. 

13.  On a purely mathematical approach a starting point of not less than 6 years and 6 months imprisonment would be appropriate for trafficking in 99.10 grammes of ketamine.  Taking into account that you were just 18 at the time of the offence and that you have no convictions for trafficking in drugs I am satisfied a starting point of 6 years imprisonment is appropriate. 

14.  Giving you full credit for your plea of guilty you are convicted and sentenced to 4 years imprisonment.