HKSAR v. CHAN LOK WAH AND OTHERS

DCCC207/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 207 OF 2010

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Reasons for Sentence

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1.  The charge sheet contains two counts of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. The 1st charge is against D1 and D2 and the drug involved was 0.72 gramme of a powder containing 0.45 gramme of ketamine. The 2nd charge is against all three defendants and the drug involved was 11.44 grammes of a powder containing 9.54 grammes of ketamine.

2.  D1 and D2 pleaded guilty to both charges whereas D3 was convicted after trial in respect of the 2nd charge.

3.  Briefly, the facts were that an undercover police agent, PW1, managed to establish contact with a male for drug purchases by calling the number 96287071 and uttering the code “Sai Chu”.  On both occasions, a private car MB 6749 was used and the public meter car parking space in Tseng Choi Street, Tuen Mun, was designated as the place for the transactions.

4.  Purchase money of HK$100 was given in relation to the 1st charge whereas a sum of HK$1,500 was involved in the 2nd charge.

5.  On the first occasion on 17 December 2009, after PW1 handed over the money to D1, she was given the packet of ketamine and D2 then drove the car away.  On the second occasion on 25 December 2009, after PW1 handed over the money to D2 and asked where the thing was, all three defendants then pointed to a tree outside and said it was under the tree.   PW1 was asked to go and fetch it herself.  The car was then driven away by D1.

6.  Under caution, D1 admitted that he was the one using the mobile number 96287071 and the car MB 6749.  D2 admitted that on 25 December 2009 when PW1 approached and gave them the money, the three of them pointed to the location of the tree where the packet of ketamine was placed. D2 further admitted that he would be given a reward of HK$200 to HK$300 for the deal. 

7.  D1 was born on 1 January 1991 and was almost 19 years of age at the time of the offences.  He is now 19 years and 7 months.  He has a clear record. 

8.  D2 was born on 2 June 1991 and was 18½ years of age at the time of the offences.  He is now 19 years and 2 months.  He has one previous conviction of possession of a dangerous drug for which he was put on probation for 12 months on 17 April 2008.

9.  D3 is now aged 21.  He has 4 previous convictions, but this is his first trafficking in a dangerous drug conviction. He was sent to rehabilitation centre for possession of offensive weapon on 10 June 2008 and that was his most recent conviction prior to the present offence.  In mitigation, it was said that he has a supportive family and he would reform himself in the future.

10.  Insofar as D1 and D2 are concerned, I have asked for and have now with me a background report and a Training Centre report.

11.  D1 made frank admissions to those compiling the reports and said that, out of curiosity, he started taking ketamine and cocaine in mid 2008.  In order to make quick money and because of peer influence, he got himself engaged in the drug trafficking business.  D1 was reported to have behaved himself and complied with institutional rules and regulations while on remand.  He also expressed remorse although his reflection on his own problems is regarded as superficial.  D1 is considered suitable for detention in a training centre.

12.  D2 also made frank admissions.  He told the officer that he started taking ketamine and cocaine in late 2006 and mid 2007 under peer influence.  After he had been put on probation, he managed to behave himself and quit his drug habit.  However, he then mixed with some undesirable peers again and he relapsed into taking the drugs in June 2009.  In order to support his drug and entertainment expenses, he got himself engaged in the drug trafficking business.  During the period of remand, D2 was able to observe the rules and he expressed remorse for his misdeeds.  He is considered suitable for detention in a training centre.

13.  In the background report, it was revealed that D2’s delinquent behaviours might have had a link with the disclosure of something relating to his personal background and his breaking-up with his girlfriend. 

14.  The court has said time and again that there is a need for deterrence when dealing with offences like trafficking in a dangerous drug and that age carries little weight in mitigation (see, for example, R v Lau Tak Ming and Ors [1990] 2 HKLR 370, SJ v Ko Fei Tat [2002] 4 HKC 59).   In AG v Suen Yuen Ming [1989] 2 HKLR 403, the Court of Appeal observed that save in very rare cases, a training centre order for trafficking in substantial quantities of dangerous drugs should not be imposed.

15.  I am also aware that in Wong Chun Cheong v HKSAR (2001) 4 HKCFAR 12, the Court of Final Appeal examined the circumstances under which a training centre order is to be imposed and what the relevant considerations are.

16.  The guidelines for trafficking in ketamine were laid down in SJ v Hii Siew Cheng and Another [2009] 1 HKLRD 1.  In the present case, for the 0.45 grammes of ketamine involved in the 1st charge, I consider a starting point of 12 months to be appropriate.  As regards the 2nd charge, as 9.54 grammes of ketamine was involved, I consider a starting point of 4 years to be appropriate.

17.  These two charges are separate and distinct offences which occurred on different days and, in principle, the sentences should run consecutively.  In the circumstances, and if a term of imprisonment were to be imposed, D1 and D2 would, after getting their one-third reduction for their pleas, need to serve a term of 40 months.  After applying the totality principle, I consider that a term of 36 months’ imprisonment would be the appropriate sentence if a term of imprisonment were to be imposed.

18.  Today, in mitigation, both Mr Fu for D1 and Mr McGuinniety for D2 told the court that the defendants would ask for a custodial sentence, that is a term of imprisonment, instead of a training centre order as they have been detained since December 2009 after their arrest.  In other words, both D1 and D2 are saying that if an imprisonment term is imposed, that would allow them to be released earlier than if they were to be detained in a training centre.

19.  I should say at the outset that such wishes of the defendants carry little weight when considering an appropriate method to deal with them.  Although the offences to which these two defendants pleaded guilty are excepted offences in Schedule 3 of the Criminal Procedure Ordinance, Cap. 221, and that section 109A is not applicable, the court would still consider how best it is to deal with these young defendants given the nature and circumstances of the offences, the interest of the community, the offender’s character and previous conduct, and when considering a training centre order, whether it is expedient that the defendants should undergo a period of training in a training centre for his reformation and for the prevention of crime, etc.

20.  Based on the information available, I have no doubt that both D1 and D2 are susceptible to peer influence and lack the ability to resist temptation and to observe discipline.  That resulted in them committing the present offences.   If they were to be left on their own, I reckon there is a high likelihood that they would mingle with their dubious peers again and go down a track which has no return.  This is evident in the case of D2 as he mingled with his dubious peers and relapsed into taking drugs after he finished the probation order. 

21.  In the interest of the community and for crime prevention, it is better that while it might still be possible to guide them back in time and to have them turned into useful members of the community that this chance be seized and acted upon.  I agree with the reporting officers that a period of disciplinary training coupled with statutory supervision is beneficial to them, that is D1 and D2.  Such training and supervision would not be available if a term of imprisonment were to be imposed. 

22.  After careful consideration, I take the view that a training centre order is the most appropriate method to deal with both D1 and D2.  I therefore make a training centre order in respect of Charge 1 for D1 and also for D2; and for Charge 2, also a training centre order for D1 and D2. 

23.  Insofar as D3 is concerned, he was convicted after trial and he cannot have the benefit of the one-third discount which is associated with a guilty plea.  There are no other mitigating factors and I therefore sentence him to a term of 4 years’ imprisonment in respect of Charge 2.