HKSAR v. DE SOUZA STEVIN

DCCC1216/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.1216 OF 2010

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Reasons for Sentence

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1. The defendant faces 1 charge of possession of dangerous drugs and 1 charge of trafficking in dangerous drugs. He pleaded guilty to both, admitted to the summary of facts and was duly convicted.

Facts

2. The defendant was stopped by Police at about 6:15pm on 6^th September 2010 with 4 other people. 1 HKD20 banknote folded into a packet containing suspected dangerous drugs (exhibit 1) was found in the left front pocket of the defendant’s jeans. The defendant was arrested and cautioned. Under caution, the defendant admitted that exhibit 1 contained dangerous drugs and was for his own consumption. The other 4 people were questioned, searched and released.

3.  The defendant was brought back to his home at around 10:05pm the same night. The defendant told Police that there was ketamine in the 2^nd drawer of a plastic cabinet in his bedroom. Police searched and found from the drawer 2 plastic bags containing suspected dangerous drugs (exhibit 2) and a plastic bag containing 20 transparent plastic bags (exhibit 3).

4.  The defendant was arrested and cautioned again. Under caution, the defendant admitted that exhibit 2 contained ketamine and he planned to sell it to earn money.

5.  In the subsequent video recorded interview, the defendant further admitted that he purchased the ketamine in exhibit 1 from an unknown person for HKD100 at around 2:15pm on 6^th September. At around 3pm, the defendant purchased exhibit 2 from the same person for HKD900, planning to sell the ketamine on to his friends. The defendant bought exhibit 3 to repackage exhibit 2 into small bags so that he can sell to his friends at HKD100 to HKD200 per small bag. The defendant had his bedroom for himself and his family members had no knowledge of the dangerous drugs.

6.  At the time of arrest, the defendant had HKD310 cash on him. The estimated street value of exhibit 1 was about HKD100, exhibit 2 about HKD2,200. The narcotic content involved in charge 2 is 13.45g of ketamine.

Previous

7.  The defendant has a previous conviction for trafficking in dangerous drugs when he was sentenced to detention in the Training Centre.

Mitigation

8.  The defendant is 17, educated up to F.1 level. Other than the fact that his parents were never married, the contents of the antecedents were admitted.

9.  The defendant is single. His natural father is 47 but they have no contact. The defendant’s mother is 36 and a kitchen worker. The defendant has an elder brother but they also have no contact with him. The defendant’s younger sister is 13 and a student. Apart from working as a transportation worker and in a hair salon, the defendant also worked as a cook earning around 7,000 per month. The defendant would give 2,000 to his mother for support and maintenance of the family. It was submitted the defendant admitted to the charge at the earliest opportunity and was cooperative with the Police.

10.  In relation to charge 1, it was submitted that the drug involved was a small amount. In relation to charge 2, it was submitted that it was due to the greed of the defendant that he bought the drugs for resale. It was pointed out by counsel  that only made a small gain from the resale.

11.  Also in relation to Charge 2, it was submitted that it was the defendant himself who volunteered the information about the drugs in his home. The defendant is remorseful, understands the seriousness of the offence and promises not to reoffend.

12.  2 letters of mitigation were submitted, one from the defendant’s social worker and one from his mother, pleading for leniency. The court did inquire if counsel had anything to say about the defendant’s previous trafficking conviction but counsel indicated that he did not have instructions on that.

Sentencing guidelines

13.  Guideline sentence for trafficking in ketamine is found in the case of Secretary for Justice v Hii Siew Cheng (許守城) [2009] 1 HKLRD 1, CAAR7/2006. The tariff for sentence after trial for traffickers in ketamine of 10 to 50 grammes is between 4 to 6 years’ imprisonment.

Sentence

Charge 2

14.  The defendant is 17 years old. It is a relatively young age but does not fall within the extreme youth category and as such his age alone is not a strong enough mitigating factor to allow me to depart from the guideline sentence.

15.  It is this court’s experience that most of the trafficking cases nowadays involve young people. Especially when the drug concerned is ketamine. The court must keep sending out the message that young people will not be dealt with differently when they are caught trafficking in dangerous drugs.

16.  This is not the first time that the defendant is convicted of a trafficking offence. He was sentenced to detention in the Training Centre on 23^rd January 2009. He was released on 4^th June 2010. He committed the present offences just 3 months after his release. I do not see that as a sign of remorse.

17.  Given the age of the defendant, normally I would have called for a background report before sentencing, but given the fact that this is his second trafficking conviction, I do not find that there is any room at all for me to deviate from the guideline sentence and any delay in his sentencing will only add to his suffering from the uncertainty.

18.  Therefore, hard as it is, I will follow the guidelines and adopt a starting point of 48 month’s imprisonment, reducing it by one third in recognition of his guilty plea and sentence the defendant to 32 months’ imprisonment on charge 2.

Charge 1

19.  In relation to charge 1, I will adopt a starting point of 6 months’ imprisonment, reducing it by one third to 4 months’ imprisonment. I will order that this sentence be served concurrently to the sentence in charge 2.