HKSAR v. TING WAI KIN

DCCC 190/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 190 OF 2012

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Reasons for Sentence

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1.  The defendant has pleaded guilty before me to one charge of trafficking in a dangerous drug, namely 26.64 grammes of a powder containing 18.79 grammes of ketamine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.  The facts admitted by the defendant revealed that police officers on anti-narcotics duties in plainclothes in the Kowloon City area were patrolling along Tam Kung Road at around 9.28 pm on 18 January 2012 when they saw three youngsters, one of whom was the defendant herein, lingering outside an amusement game centre at No 34B Tam Kung Road, To Kwa Wan.  Finding their conduct suspicious, the police officers intercepted them for inquiry after revealing their police identities.  Body searches were conducted and the dangerous drugs as set out in the particulars of the charge were found inside the front right trousers pocket of the defendant.  Nothing suspicious was found from the other two youngsters.  The defendant was arrested and said under caution that the ‘two packets of K Chai’ were for his own consumption.  He confirmed this in a subsequent video-recorded interview under caution.  The dangerous drugs was examined and found to be 26.64 grammes of a powder containing 18.79 grammes of ketamine.  The street retail value was estimated to be HK$2,957.  He possessed these dangerous drugs for the purpose of trafficking.

3.  Section 109A of the Criminal Procedure Ordinance, Cap 221, provides that no court shall sentence a person of or over the age of 16 years and under 21 years of age to imprisonment unless the court is of the opinion that no other method of dealing with such person is appropriate.  This provision, however, does not apply to offences of trafficking in dangerous drugs, which are excepted offences.

4.  I adjourned sentence until today, so that I could have the advantage of a Background Report and Training Centre Report from the Correctional Services Department.  I did, however, emphasize to the defendant that I was keeping all options of sentence open to myself including a custodial sentence.  These reports are now before me and I have read them and taken the contents fully into consideration when deciding sentence.  The contents have been explained by counsel to the defendant and he agrees with the contents.  I note that he told both the interviewing officer at the Pik Uk Correctional Institution who prepared the Correctional Services Report and the interviewing officer who prepared the Background Report that he possessed the drugs in question for his own consumption.  Counsel for the defendant confirms that the defendant maintains his plea of guilty to the charge and admission of the facts, and admits he possessed the dangerous drugs in question for the purpose of trafficking.  Counsel for the defendant has submitted that part of the drugs would be for his own consumption.  I have also borne in mind all that has been urged upon me on behalf of the defendant as well as the contents of the letter written by the defendant.

5.  I do 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 interest of the community, the need for punishment of the offender and deterrence of others must be given due regard, and in most circumstances, for offences of this nature, they best serve the interests of the community as a whole.  The appeal courts have made clear that save in very rare cases, a training centre order should not be imposed for trafficking in substantial quantities of dangerous drugs.  Here, the quantity is substantial.  The defendant would have been fully aware of the gravity of what he was doing and the risks that would be involved if he was apprehended.  The appeal courts have consistently held that for the offence of trafficking in dangerous drugs, unless it is a case of extreme youth, young age carries little weight in mitigation.  In the present case, the defendant was and is not a person of extreme youth.  Deterrence is an important factor in sentencing for this nature of offence and the courts should not only have regard to the rehabilitation needs of the defendant.

6.  The defendant is now aged 18 years.  He is the younger child of his parents, who are divorced, and lives with his mother and younger brother.  The current whereabouts of his father is uncertain.  His mother has been in court to show her support of the defendant.  He quit schooling in 2008 after completing Form 3.  He did not look for employment but remained idle at home, indulging in various pleasure seeking activities and began to consume ketamine, which led to his being convicted for the offences of possession of dangerous drugs in 2009 wherein he was sentenced to the drug addiction treatment centre.  He was released from the DATC in March 2010, and soon relapsed to taking drugs and returned to his deviant lifestyle.  He was unemployed at the time of the offence.

7.  A lenient sentence is sought on behalf of the Defendant.

8.  Save for his plea of guilty, there is really little else in mitigation before me.

9.  In the Secretary for Justice v Hii Siew Cheng & Anor [2009] 1 HKLRD 1, the Court of Appeal laid down the tariffs for trafficking in ketamine. For trafficking 10 to 50 grammes of ketamine, a term of imprisonment of between 4 to 6 years is called for.

10.  Although the offence to which the Defendant pleaded guilty is an excepted offence in Schedule 3 of the Criminal Procedure Ordinance, Cap 221, and section 109A is not applicable, the Court must still consider how best it is to deal with him, given the nature and circumstances of the offence, the interest of the community, the Defendant’s character and previous conduct and such.  I note that the defendant is not considered suitable for the training centre as he continues to be a drug dependant.

11.  In the present case, the matters urged upon me cannot detract from the fact that a deterrent sentence is called for as our society needs to get the message that trafficking in a dangerous drug is a very serious offence.  Drug trafficking offences do call for substantial custodial sentences.  The defendant now admits that he was in possession of the drugs in question for trafficking, although in mitigation counsel for the defendant submitted that a part would be for his own consumption, although even the defendant himself is unable to say how much.  Counsel for the prosecution accepts that perhaps some of the dangerous drugs could be for the defendant’s own use.  The defendant is a drug dependant. But as Counsel for the prosecution rightly said, it would not be possible to differentiate what would be for self use.

12.  The sentence follows the quantity of drugs.  That would put the quantity in the defendant’s possession for trafficking at the material time at the lower end of that spectrum, being 18.79 grammes of ketamine, and would warrant a starting point of 4 years and 6 months (ie 54 months) imprisonment.

13.  In HKSAR v Chow Chun Sang, CACC 135/2011, Hon Yeung VP, in delivering the judgment of the Court, said:-

“19. We are of the view that in drug trafficking cases, when all or part of the drugs are intended for the trafficker’s own consumption, the ensuing discount to sentence should, depending on the circumstances, fall somewhere between 10% and 25% of the basic starting point. In determining the extent of the discount in a particular case, the court should have regard to factors including the total quantities of drugs involved, proportion of the drugs intended for self-use, the nature of the drugs, whether the drug trafficking was for financial gain, whether the trafficking was organized and premeditated, and the background and criminal record of the defendant.”

14.  I have taken into account the factors referred to and that the defendant is a drug abuser and that some of those drugs would have been for his own consumption.  There was no direct evidence of sale of any drugs.  I have also borne in mind the latent risk of the drugs for self-consumption falling into the wrong hands.  The defendant was unemployed at the material time, and in my view the risk is a substantial one.

15.  Looking at those features of the case, and having considered the quantity of ketamine involved in this case and the defendant’s personal background, I am minded to adopt a starting point which is at the lowest end of the scale, ie 4 years, to reflect that part of the dangerous drugs may be for his own self-consumption.  In light of the defendant’s guilty plea, I shall give him the usual discount of one-third.  I do not see any other mitigating factors that warrant any further reduction in sentence.

16.  The defendant is sentenced to 32 months’ imprisonment.