HKSAR v. YU WAI KIT

 DCCC580/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 580 OF 2010

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Reasons for Sentence

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1.  Defendant was convicted upon his guilty plea of one charge of trafficking in a dangerous drug. In sentencing, I have taken into account the whole circumstances of the case, including its nature and facts, in particular, the nature and quantity of the dangerous drug involved, background of the defendant, mitigation made on his behalf and had regard to sentencing precedents.

2.  Facts of the case are simple. Defendant was stopped in an open space at a public housing estate. Upon search, two bags of dangerous drug were found on him. Under caution, he admitted to have the habit of inhaling ketamine for more than 10 times a month. He also admitted that on the day, he was asked by a friend to deliver the larger packet of ketamine for a reward of $50, and the smaller packet of ketamine was given to him for free.

3.  The dangerous drug involved in this charge was ketamine. The quantity of ketamine in the two bags found on the defendant was respectively 11.67 grammes of a powder containing 7.19 grammes of ketamine and 1.92 grammes of a powder containing 1.28 grammes of ketamine.

4.  Defendant is now 17 years of age. He is single and living with his family. He left school at Form 4 level. Since then, he has been unemployed and dependent on the family.

5.  The offence of trafficking in dangerous drug is a serious one. Ketamine has been shown to be a prevalent drug in Hong Kong. The harm to individuals and the community as a whole is tremendous. According to the guideline in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, the tariff for a conviction after trial of trafficking in 1 to 10 grammes of ketamine is 2 to 4 years’ imprisonment.

6.  The defendant is a first-time offender. When he committed the offence, he had just turned 17 in age. Learned counsel for the defence asked me to consider a whole range of CSD reports before deciding on sentence. In consideration of the matter, I 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 interests of the community, the need for punishment of the offender and deterrence to others must be given due regard, and in most circumstances, for this nature of offence, they best serve the interests of the community as a whole.

7.  The Court of Appeal stressed in AG v Suen Yuen Ming [1989] 2 HKLR 403 that it is only in very rare cases that a training centre order would be considered the proper sentence where substantial quantities of dangerous drug are involved.

8.  As early as in 1972 when the situation of combating dangerous drugs was at the least equally difficult as nowadays, the Court of Appeal said in Lam Hak Hung CA724/1972 that:

“It has been said time and again that the courts cannot regard it as a matter of mitigation that a person is either very young or very old when he embarked upon manufacturing of dangerous drugs or involved himself in trafficking in dangerous drugs.  Otherwise, as so often does in fact happen, those who are inveigled into taking part in the manufacture and trafficking will be the lame, the halt, the blind, the young and the old, people who may have some ground for pleading for the mercy of the court if they are in fact arrested.”

9.  I have also considered cases such as R v Lau Tak Ming [1990] 2 HKLR 370, R v Yiu Kwong Shui CA377/1995, R v Lam Chak Hing [1995] 1 HKCLR 190, and SJ v Yau Si Ho CAAR7/1999. In all these cases, the court echoed the same view.

10.  I have also considered the case of R v Chiang Sun Keung CA312/1996 which the defence submitted to me.

11.  Having considered the whole circumstances carefully, bearing in mind the young age of the defendant and everything said on behalf of him and taking into consideration what the programme in the training centre and other institutions could offer to young offenders, in my judgment, in the present case, the punishment of the offender and the deterrence to others best serve the interests of the community, and the only appropriate sentence to be imposed is an imprisonment term.

12.  I was told that the defendant is drug dependent and he decides to receive voluntary drug addiction treatment. Since I am going to impose an immediate custodial sentence and in the light of the length of his term, I am sure that CSD has sufficient and adequate facility and service in the prison to effectively help the defendant to get rid of the vice habit when he is serving the imprisonment term.

13.  In deciding the appropriate starting point to be adopted, I take into account what the Court of Appeal said in Lau Tak Ming, that within the suggested bands, the sentencing judge may take into account matters such as the following: the profit which may reasonably be expected to be derived - the defendant said under caution that he was to receive $50 as a reward and a small quantity of ketamine for his own use; the number of packets; the type of mixture containing the narcotics; the degree of involvement of the offender; his previous history of narcotics offences - and of course the defendant has a clear record before.

14.  Having considered the whole circumstances, I consider a starting point of 3 years appropriate. The defendant pleaded guilty. He is entitled to a one-third discount. I am convinced that the defendant is remorseful. When he committed the offence, he was just 17 years of age. I will give him a further discount of 6 months. I sentence the defendant to 18 months’ imprisonment.

15.  I urge the defendant to take my advice to turn over a new leaf after he has served his sentence.