HKSAR v. LEUNG NGAI AND ANOTHER

HCCC 135/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 135 OF 2013

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT:

Background and the Facts

The 1st defendant pleaded guilty to one count of trafficking in a dangerous drug and the 2nd defendant pleaded guilty to one count of conspiracy to trafficking in a dangerous drug, before me on 20 November 2013. I have adjourned sentence to today pending a background report and a Training Centre report on each of the defendants, warning them that irrespective of the recommendations, I might still pass a term of imprisonment which is almost inevitable in this type of case.

Briefly, in the afternoon of 3 December 2012, the defendants were intercepted by the police outside the home premises of the 1st defendant. Upon search, the 2nd defendant was found holding a black plastic bag in which were 63 empty transparent resealable plastic bags and one electronic scale.

CCTV captured the 1st defendant giving the 2nd defendant the said plastic bag while the 1st defendant was searching for keys. Subsequently, the police gained entry into the 1st defendant’s home premises and found under the pillow of the 1st defendant’s bed, one packet of ketamine which was later confirmed to be 0.24 kilogramme of a powder containing 0.20 kilogramme of ketamine, and also 46 empty transparent resealable plastic bags.

After being arrested and when under caution, the 1st defendant admitted that the ketamine and the plastic bags belonged to him and had nothing to do with the 2nd defendant or his family members.

The 1st defendant repeated his admission during a video-recorded interview and further admitted that he bought the drug for resale in order to earn a profit. However, the 1st defendant refused to disclose the source of the drug.

As for the 2nd defendant, he admitted under caution that the drug belonged to the 1st defendant and that the 1st defendant had asked him to assist in dividing the drug. As a reward, the 1st defendant would give him some ketamine. The 2nd defendant provided further particulars and repeated his admission during a video-recorded interview.

Mitigation for the 1st Defendant

The 1st defendant is now aged 17 years and 8 months and was aged 16 and 8 months at the time of the offence. He is single and was living with his family when he was arrested. After promoting to Form 1, the 1st defendant was unable to continue his studies in the higher form despite a few attempts.

At the age of 13, the 1st was caught for shoplifting. He was given a caution by a police superintendent. The 1st defendant was again caught for shoplifting at the age of 14 and once more a caution was given by a police superintendent.

Reportedly, the 1st defendant had tried open employment at the age of 15 by taking up an apprenticeship at an air‑conditioning service shop, a hair salon and a fish stall, and had been a delivery worker for one month. According to the background report, the 1st defendant identified with a triad gang in the summer of 2011.

According to the Training Centre report, the 1st defendant did not behave properly during the remand period after his arrest. He was twice awarded separate confinement, loss of privilege and loss of remission in August and September 2013 respectively, one for possessing one more bed sheet without authorisation, another for engaging in a heated quarrel with another inmate.

Since his last court appearance and up to the preparation of the report, it was said that the 1st defendant managed to comply with institutional regulations and rules. The officer further considered that “in view of the 1st defendant’s weak self-control ability and weak law‑abiding concept, he is suitable for detention in a training centre.”

In mitigation, Ms Yip for the 1st defendant told the court that the 1st defendant came from a simple working class family. Being a failure in academic studies, the 1st defendant sought employment but could not find a stable job because of his young age and poor academic performance.

The 1st defendant eventually turned to selling drugs and was induced to do so as the one supplying him with the drugs would allow the 1st defendant to put the payment on account and the 1st defendant did not need to pay for the drug there and then.

Ms Yip also handed to the court letters written by the 1st defendant’s family members and his social worker. All spoke of the defendant as a person of good nature. He was being used and he merely committed the offence out of greed.

Mitigation for the 2nd Defendant

The 2nd defendant is now aged 19½ and was aged 18½ at the time of the offence. Prior to this offence, the 2nd defendant had a clear record. He quitted school without finished his Form 3 studies in the morning of the day of his arrest. He is single and he lived with his family prior to his arrest.

The 2nd defendant’s parents divorced in 2006 and his mother suffered from some psychiatric problems after the divorce. It was disclosed in the Training Centre report that the 2nd defendant joined the triad society in 2008 and had taken ketamine once in 2008. He also smoked cannabis a few times in 2009.

The 2nd defendant stated that he did not hang out very often but played computer games at home. During his remand, the 2nd defendant managed to behave properly. The reporting officer, during the interview, found the 2nd defendant to be sincere but at the same time noted that the 2nd defendant was reserved in disclosing his delinquent and drug-taking history. The officer considered him suitable for detention in a Training Centre.

In mitigation, Mr Boyton stressed that the 2nd defendant would only be rewarded with some ketamine out of his deal with the 1st defendant. In addition, Mr Boyton urged this court to give the 2nd defendant a further reduction on top of that for his plea as the 2nd defendant had volunteered his involvement at the time of arrest without which, Mr Boyton submitted, would have rendered the prosecution against the 2nd defendant a really difficult one.

Letters written by the 2nd defendant, his mother, his social worker and his teacher were given to the court. In gist, the 2nd defendant expressed his remorse and begged for a lenient sentence. The others described the 2nd defendant as a person of good nature.

The Sentence

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 in 50 to 300 grammes of ketamine, a term of imprisonment of 6 to 9 years is called for. As early as in 1990, the Court of Appeal had already stated in the R v Lau Tak Ming & Ors [1990] 2 HKLR 370 that for offences of drug trafficking, clear record and young age, unless extreme youth is involved, could only have little weight as mitigating factors.

As I pointed out on the last occasion, although both defendants are of relatively young age, both are not persons to whom the description of “extreme youth” could be applied.

For the 1st defendant, after having heard Ms Yip’s mitigation made on his behalf, and having considered the 1st defendant’s background, the contents of the reports and the facts of this case, including the 1st defendant’s role as the prime mover of this trafficking activity, I come to the conclusion that the only appropriate way of dealing with the 1st defendant is to impose a term of imprisonment.

As for the 2nd defendant, after hearing Mr Boyton’s mitigation made on his behalf, and having considered the 2nd defendant’s background, the contents of the Training Centre report, and the facts of this case, I again come to the conclusion that the only appropriate way of dealing with the 2nd defendant is to impose a term of imprisonment.

The drug involved here was a total of 200 grammes of ketamine for Count 1. Although Count 2 to which the 2nd defendant pleaded guilty is in the nature of a conspiracy to traffick in a dangerous drug, and the 2nd defendant stated that he did not know of the quantity of the drug, I would use 200 grammes of ketamine as the basis for sentencing the 2nd defendant given the facts admitted by him.

Although youth itself is not a mitigating factor having any significant weight in drug trafficking cases, for both defendants before me, I am prepared to adopt a slightly lower starting point in view of their general background. The starting point which I consider appropriate in this case is therefore one of 7½ years for each of Count 1 and Count 2.

The 1st defendant pleaded guilty. He will receive a one-third reduction for his plea. Other than this, there is nothing which would warrant any further reduction in sentence. The 1st defendant is therefore to serve a term of 5 years for Count 1.

The 2nd defendant pleaded guilty and he is also entitled to a one-third reduction. Moreover, I accept Mr Boyton’s submission that without the 2nd defendant’s confession, the prosecution against him would be very difficult, if not impossible. I am therefore prepared to give the 2nd defendant a further discount for this and the authorities submitted by Mr Boyton all endorse such a practice.

Hence, for the 2nd defendant, I will give him a further reduction of 9 months in addition to the one-third reduction for his plea. As a result, the 2nd defendant is to serve a term of 51 months’ imprisonment.