HKSAR v. LI HAI MING

DCCC 514/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 514 OF 2014

----------------------

----------------------

---------------------

Reasons for Sentence

---------------------

1. The defendant pleads guilty to two charges of trafficking in dangerous drug.

2. On 8 April 2014, at around 6 pm, the defendant was stopped and searched on the street by the police outside Ground Floor, Sau Ho House, Sau Mau Ping Estate, Kwun Tong.  He was found in possession of one resealable plastic bag containing 78 resealable plastic bags containing totally 97.31 grammes of a powder containing 37.02 grammes of ketamine.

3. At around midnight time, a house search was conducted at his residence at Sau Ho House, Sau Mau Ping Estate.  From various places at his home, a total of 78.62 grammes of a powder containing 31.39 grammes of ketamine and an electric scale were found.

4. In the video-recorded interviews held on 9 and 10 April 2014, the defendant admitted that all the ketamine seized belonged to one Lee Kin-tik (“Lee”) who asked the defendant to sell it.  For each gramme of ketamine sold, the defendant would be awarded $60.  When he was arrested, he was delivering the ketamine with Lee.  The ketamine seized from his residence was for sale on the instructions of Lee.  He himself has no addiction to drugs. 

5. The total estimated value of the ketamine seized is around $21,000.

6. The defendant is a 16-year-old student.  He has no previous criminal record.  At the request of counsel for the defendant, Mr McGowan, I called for a training centre report.  The assessment officer of the Correctional Services Department is of the view that the defendant is suitable for detention in a training centre, and a period of disciplinary training coupled with statutory supervision might be beneficial to him.

7. During the adjournment for the preparation of the report, the defendant gave a non-prejudicial statement to the police, giving full information of Lee and offering to testify as a prosecution witness against him.  In the statement, the defendant gave full account as to how he assisted Lee to store and traffic ketamine.  Lee was actually intercepted by the police in the vicinity when the defendant was arrested on the street.  Lee was subsequently released without being prosecuted.  He has now left Hong Kong and no prosecution could have been brought against him. 

8. Despite that the offer of assistance has not been fruitful, Mr McGowan asks the court to take into consideration of the defendant’s attempt to help which he says is an act out of his genuine remorse.  He draws my attention to the relevant chapters in Sentencing in Hong Kong as to the proper approach a court should take in considering the defendant’s offer of assistance to authorities and the principles regarding an order for training centre.  I am grateful to Mr McGowan for his assistance. Accepting the seriousness of the charges, Mr McGowan urges me to make a training centre order instead of sentencing the defendant by imprisonment. 

9. Trafficking in dangerous drug is a very serious offence.  The Court of Appeal has laid down sentencing guidelines for trafficking of ketamine in Secretary for Justice v Hii Siew Cheng [2008] 3 HKC 303.  For trafficking of ketamine from 50 to 300 grammes, the imprisonment band is 6 to 9 years.  

10. The two offences in the present case were committed in close proximity in terms of time and location.  The quantity of the dangerous drugs in the two charges should be combined together in considering the overall sentence.  The total quantity of ketamine in this case was about 68 grammes.  For this quantity, the proper starting point would have been about 6 years’ imprisonment.  Given the one-third reduction for his plea of guilty, the proper term of imprisonment would have been about 4 years.  On the other hand, while the maximum detention in the training centre is up to 3 years, the usual custodial period is said to be 18 months which is mathematically substantially shorter than a proper imprisonment term that the defendant would have been sentenced for the present offence.

11. The training centre report reveals that the defendant migrated to Hong Kong from the mainland in 2007 to join his mother for family reunion.  During his primary education, his performance at school was quite satisfactory.  He only turned wayward in the summer of 2013 when he mingled with undesirable characters with triad background.  The defendant frankly admitted that he became a drug peddler in March 2014 in order to earn quick money.  During the interview with the assessment officer, the defendant confessed his guilt and felt sorry for the crime he committed. 

12. The defendant’s mother was also interviewed. She said the defendant is a person of tame nature who had all along maintained good relationship with his parents. 

13. Mitigation letters written by the defendant’s school principal, teachers, his parents and the defendant himself have been submitted to this court.  The teachers speak quite good of the defendant’s character and performance at school. 

14. Sentencing the defendant in the present case is not an easy task.  On the one hand, he has committed a very serious offence. In the interest of the community, an imprisonment term would usually be appropriate in order to reflect the seriousness of the offence.  On the other hand, the defendant had just turned 16 when he committed the present offences. He is now 16 and a half years old.  He has no previous criminal record. It appears that he has been influenced by undesirable characters and has not stepped on the wrong track for long.  A training centre order might help him to rehabilitate and bring him back to the right track.

15. Having considered all the circumstances, I find that I am just persuaded to give the defendant one last chance by sentencing him to detention in a training centre.  I have considered whether a training centre order would be too lenient such that the interest of the community cannot be protected and yet come to the conclusion that the training centre order is not a soft option. 

16. The overall starting point I will take for the two offences would be about 6 years if he were to be sentenced by imprisonment.  Giving him the usual one-third reduction for his plea of guilty, the sentence would be reduced to 4 years.  I would allow a further reduction for 6 months for his very young age and previous good character.  His attempt to assist the police became unfruitful only because Lee had left the jurisdiction.  I accept that his offer to help is an act of genuine remorse, for which a further reduction for 2 months would be allowed.

17. Taking into account the benefit he will normally get from the scheme of remission in the prison and deducting the 6 months’ period of detention since he was arrested, the actual time he would have to serve in prison would not be significantly longer than the usual 18 months’ detention period in the training centre.

18. It should also be noted that, in principle, he could be detained for up to 3 years.  Coupled with the 3 years’ supervision after release when he is subject to recall, a training centre order should not be properly regarded as an unduly lenient sentence.  A training centre order will punish the defendant by depriving his liberty for a substantial period of time on the one hand and give the defendant a chance to receive vocational training during the detention and thereafter subject to supervision for 3 years on the other hand.  

19. The assessment officer of the Correctional Services Department remarked in the suitability report that “in order to help him develop more insight into his problems and strengthen his law-abiding concepts as well as establish a well-regulated life, a period of disciplinary training coupled with statutory supervision might sound beneficial to him.” 

20. I agree with his comment.  The defendant has not turned wayward for long.  He made full confessions of his wrongs.  He attempted to assist the authorities.  He has shown genuine remorse and determination to turn over a new leaf.  His parents show full support to help him.  I am persuaded that this is an exceptional case that the defendant deserves one last chance for rehabilitation.  I am satisfied that a training centre order would be in the interest of the defendant and the community as well.

21. I therefore make a training centre order for both offences.