HKSAR v. AU TSZ FUNG

DCCC913/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 913 OF 2008

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Reasons for Sentence

1.  Defendant, I found you guilty after trial of trafficking in 49.41 grammes of powder containing 41.72 grammes of ketamine.

2.  I found that on 20 August 2008, at about 0046 hours, inside No. 53 Pilkem Street, you had in your shorts pocket four plastic bags inside a cigarette box containing the dangerous drugs.  I found that you had told the police officers that, “Sorry, I have no money.  That is why I dragged this K-chai here for someone and give it to someone and I can earn $500.  Give me a chance.”  You, therefore, admitted that you were trafficking those drugs.

3.  Mr Allan, in his mitigation before me, has said all that he can on your behalf.  I have taken into consideration the mitigation advanced for you.  You are aged 25 and of clear record.  According to the antecedent, you are not a drug addict, received education up to Form 3.

4.  Mr Allan has asked this court to call for a background report on you prior to sentencing you.  He refers to a passage in Sentencing in Hong Kong, 5th edition, Cross and Cheung, but under the chapter, “Antecedent statements and background reports”, if defence counsel feels that a pre-sentence report will assist the accused, the court should have been invited to send for such.

5.  Background reports of that type are often useful where a 1st offender appears “on a fairly serious charge”.  HKSAR v Thapa Magdalena E is referred to, Magistracy Appeal 1131/1999.  That is a judgment of Beeson J, of which Mr Allan refers me to paragraphs 6 and 7 where it says:

“This was an appeal against the immediate custodial sentence of 2 months’ imprisonment by the Magistrate.  I am concerned about the imposition of that immediate custodial sentence, in particular because the Appellant was a woman in her thirties who had a clear record up to that point.  The Magistrate for reasons that were not apparent from his Reasons for Sentence, apparently did not consider any other form of sentence, apart from the possibility, which he ruled out, of a suspended sentence. But what is more important is that no background reports were obtained, nor was consideration given to the possibility of a Probation Order, or a Community Service Order, for what was a first offender, who had a good employment record.”

Paragraph 7:

“I accept it is not always incumbent on a Magistrate when sentencing a first offender to obtain reports; however, as a rule of practice it is sensible that Magistrates seek such reports in all cases where a first offender appears on a fairly serious charge such as this.”

6.  As Mr Allan rightly concedes, this is a serious offence.  This is not a category of offence, which falls in the “fairly serious” bracket.  There is no other option open to me but to sentence you to a lengthy period of imprisonment.  There is nothing put forward on behalf of you by Mr Allan but for the fact of your clear record and you are a young man of good character that he asks this court to call for a background report.  There are no extenuating or exceptional circumstances put forward by Mr Allan such as to persuade me in any way that a background report will assist me in this case.  I, therefore, will not be calling for a background report.

7.  Mr Allan has also submitted to me that the guidelines, or tariffs, are not a straitjacket on this court.  I strongly disagree with him.  The Court of Appeal on 6 June 2008 laid down new tariffs for trafficking in ketamine in the case of the Secretary for Justice v Hii Siew Cheng CAAR7/2006.  In this case, you had trafficked in 41.72 grammes of ketamine, and that falls within the third bracket of between 10 to 50 grammes and a sentence after trial would be between four to six years’ imprisonment.

8.  I have, of course, convicted you after trial.  And in following the tariffs laid down in that case, I now sentence you to five and a half years' imprisonment.