HKSAR v. YIP KIU CHUN

DCCC 1038/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1038 OF 2013

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REASONS FOR SENTENCE

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1.  The defendant (male) (aged 17) appeared before me this morning and pleaded guilty to a single charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.  The particulars of offence avers that the defendant on 27 September 2013 near lamp post No N7258, Chui Tin Street bus stop, Lung Hang Estate, Shatin, New Territories, unlawfully trafficked in a dangerous drug, namely 39.10 grammes of a powder containing 31.68 grammes of ketamine.

Facts

3.  According to the summary of facts which has been admitted by the defendant, this was a simple stop and search case where a policeman spotted the defendant acting furtively in the vicinity of Lung Hang Estate, Shatin.  The policeman then intercepted the defendant for investigation and revealed his police identity.  Upon search, it was found in the right front pocket of the defendant’s jeans three resealable plastic bags wrapped in a piece of tissue each containing white powder.  The defendant was then arrested and immediately cautioned under which he admitted that he was delivering two of the three resealable plastic bags containing ketamine found on him and then the remaining resealable plastic bag containing ketamine was for his reward for the delivery.  At the time of his arrest, he had two mobile phones and HK$4,391 with him.

4.  The street value of the dangerous drugs is said to be $3,833.28. Obviously, the defendant possessed the ketamine for the purpose of trafficking and the quantity of the drugs after the analysis of the Government Chemist was the same as now states in the particulars of the charge which is a purity of 31.68 grammes of ketamine. 

The criminal record and background of the defendant

5.  The defendant had a similar trafficking in dangerous drugs record two years ago.  He was sentenced in August 2011 in the Kowloon City Magistracy to Detention Centre.  He had received education up to Form 3 level.  He is still single and he lives with the parents in a public housing estate in Chi Wan San, Kowloon.  After he was discharged from Detention Centre, the defendant worked as a junior staff in a fast-food chain store earning an income of HK$9,000 to HK$10,000. 

Mitigation

6.  In mitigation, Mr. Luk, the defendant’s solicitor, had submitted to the court for consideration three letters written by the defendant himself, the defendant’s parents and also a Social Worker.  The defendant is extremely remorseful and regret for what he had done and the disappointment that he has caused to his parents.  He expected to be sentenced to prison for this offence and he promised the court that he would turn over a new leaf and asked the court for leniency.  The defendant’s parents are of course very disappointed but they still urge the court to be as lenient as possible and asked that they would render more closer supervision to the son in the future.

7.  The Social Worker had said that during the visits, the defendant has showed much regret towards his misbehaviour and felt very sorry to his family. He said that the defendant was planning to find a stable job and he was confident that he could overcome the difficulties and refuse the temptations in the future after discharge.

8.  Mr Luk reiterated that the defendant had pleaded guilty in the first opportunity which was an indication of his strong remorse.  He explained that in a few months before the offence, the defendant had quitted his employment. The family was earning low income and the defendant succumbed to the temptation to earn quick money and therefore made the mistake and committed the present offence.  Mr Luk said that the defendant only around 16 years old and was still very young and immature when he committed this offence.  He grew up in a family where the parents were without any parental skills.  All in all, Mr Luk submitted that he was an immature young man who had committed this serious offence and he asked the court to be as lenient as possible.

Sentencing considerations

9.  Trafficking in a dangerous drug is of course a very serious offence. The Court of Appeal has already said that anyone who has been convicted with this offence would expect no mercy from the court.  A sentence of deterrent effect must be imposed in order not only to deter the defendant himself but also other people who, like the defendant, are contemplating to commit the offence in order to earn quick money. 

10.  The defendant of course is young.  However, unlike the last occasion, by the time when he committed this offence, he was already over 16 and he is not extremely young.  In approaching the sentence in this case, when dealing with a young defendant, I take into account that usually the court will consider other sentencing options, particularly a non-custodial sentence before sentencing a young defendant into a prison.  However, according to section 109(8) of the Criminal Procedures Ordinance, Cap 221, trafficking in dangerous drugs is one of those excepted offences which would allow the court to still send a young defendant straight into prison without having to first consider other non‑custodial sentence. 

11.  In the case of AG v Suen Yuen Ming [1989] 2 HKLR 403, the Court of Appeal had already said that save in very rare cases, even a Training Centre Order for trafficking in a substantial quantity of dangerous drugs should not be imposed.  The Court of Appeal had already said that whether the defendant is young or old would carry little weight in drug trafficking offences.

12.  In this case, the reason why the defendant committed the offence was purely economic but not all the people who have suffered economic hardships would turn to crime to solve their problems.  I can therefore see no exceptional circumstances which can justify the court in considering a non-custodial sentence such as a Training Centre Order and in fact very properly, the defence had never requested the court to consider to impose such an order.  This is also because this is already the second time within two years that the defendant committed a similar offence of trafficking.

13.  The present case involved ketamine.  Ketamine is commonly abused by especially youngsters in Hong Kong in recent years.  According to the tariff as laid down in Secretary for Justice v Hii Siew Cheng [2008] 3 HKC 323, for a quantity of ketamine between 10 to 50 grammes, the starting point should be 4 to 6 years.

14.  The present offence involves a purity of 31.68 grammes of ketamine.  According to the tariff, the proper starting point will be one of 5 years’ imprisonment. Although the defendant said that one of the packets that was received was for his reward, Mr Luk frankly informed the court that the defendant had admitted to him that he also planned to sell the packet to the other people for the purpose of trafficking.  Therefore, I would not reduce the starting point any further on account of his self-consumption.

15.  I can in fact consider on the other hand to increase the sentence on account of this repeated offence by the defendant but due to the fact that he is still young and immature, I decide that I would not take this course of action.

16.  In the end, the most effective and only mitigation in this case is defendant’s plea of guilty for which he would be given the usual one-third discount. 

17.  The starting point is 5 years which is 60 months.  After the discount, the sentence that I shall pass on him is 40 months’ imprisonment.