HKSAR v. SIT KA HO

DCCC1061/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1061 OF 2010

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Reasons for Sentence

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1.  Defendant, you have pleaded guilty to one charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and 3 of the Dangerous Drugs Ordinance.

2.  You have admitted that on 6 August 2010 at the staircase of the 7th Floor, outside room 710 of Toa Shue House, Lei Muk Shue Estate, Tsuen Wan in Hong Kong, you unlawfully trafficked in a dangerous drug, namely 106.72 grammes of a powder containing 71.76 grammes of ketamine.

3.  On the day in question, police officers were conducting an anti-dangerous drug operation in the area of Lei Muk Shue Estate.  At about 22.39 hours an officer saw you acting furtively at the staircase of the 7th floor.  You were walking back and forth at the staircase. The officer intercepted you, revealed his identity and searched you at the staircase.  He found 6 plastic bags containing the dangerous drugs from your left front pocket of your shorts.  You were arrested and cautioned and, under caution, you admitted that in the plastic bags was ketamine and you had bought the ketamine in Mongkok for $4,000 and were going to sell it to an unknown person for $5,000.  At that material time you were waiting for that unknown buyer.  You admitted that you were at fault and you were trying to earn some money. 

4.  Mr Lo, your counsel, has made very full and thorough mitigation on your behalf.  I have taken into account all that he has had to say.  And I have also taken into account the background report and its contents to which I called for and also all the letters written for you by your family and relatives and social worker.  Of course also the letter you have written to me.  You are now aged 20 and of clear record.  At the time of commission of the offence you were 19. 

5.  Your parents divorced when you were young and you remained living with your father.  Since 2005 you had dropped out of school and had toyed with ketamine since the summer of 2006.  However, during your evening school, which you attended from September 2009 to May 2010 you stopped taking ketamine.  However you resumed the drug taking habit again when you mixed with your undesirable peers in July 2010 and after having broken up with your girlfriend.

6.  Your parents feel very sorry that they have been unable to supervise you as best as they should have done and for that reason they feel that you have been led into mixing with the undesirable peers and the commission of this offence.  Your relatives all speak very highly of you as a caring, understanding young man.  Your grandmother speaks highly of you.  She loves you and respects you and it is my understanding that you committed this offence as you wanted to earn some quick money to help her with an operation that she was due to have to treat her gallstones. 

7.  You have a very supportive family.  No doubt you, yourself, and your family know that the commission of this offence was a foolish act on your behalf.  You had all along intended, I believe, to become a police officer and tried hard to improve yourself academically but unfortunately, as a result of this very serious crime, your dreams will unfortunately not be fulfilled.  Your family and relatives and friends are anxious that you receive as lenient a sentence as possible as this is your first ever offence and you are a relatively young man.

8.  In your letter, you have expressed to me your understanding that this is a serious offence and that you will know that you will be in prison and that whilst you are there, you are determined to improve yourself so that when you are eventually released you will be able to have steady job and work hard to support your family.  Counsel, Mr Lo knows the seriousness of this offence and that this court is bound by the higher court, the Court of Appeal guidelines on trafficking in sentencing of ketamine. 

9.  Mr Lo has informed the court that this was a very big mistake on your behalf and you are entitled to extra credit or discount because of your young age, the fact that you are a first offender, that is, your clear record and you have a supportive and caring family.  He has also urged the court to consider the fact that you did not realise that you were trafficking in such a large quantity of the drugs, although you realised you were trafficking in drugs.

10.  For these matters to which Mr Lo has referred to me to consider exceptional circumstances to give you extra credit, the Court of Appeal has on  many numerous occasions, and there has been long standing dicta, that youth and clear records are not considered to be exceptional circumstances to depart from the guideline. 

11.  It is most unfortunate that those behind the scenes prey on youngsters like yourself who are gullible and want to earn quick, fast money and use you to traffic in dangerous drugs.  You are one of a number or numerous cases who are sadly chosen as the prey to sell drugs on behalf of these larger traffickers.  However, the Court of Appeal has said this is not an exceptional circumstance to depart from the guidelines. 

12.  You had a considerable quantity of drugs in your possession for trafficking.  In following the guideline case of Secretary for Justice v Hiu Siew Cheng the quantity of drugs falls within the 4th bracket of between 50 to 300 grammes which warrants a sentence of between 6 to 9 years’ imprisonment.  In taking into account the tariffs for trafficking in these drugs, the amount you had was 71.76 grammes of ketamine.  In following  those guidelines, I take a starting point of 6 years’ imprisonment had I convicted you after trial, and giving you full credit for your plea of guilty, I reduce that term to one of 4 years’ imprisonment to which you are so sentenced.