HKSAR v. HUANG CHING KI

DCCC1229/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1229 OF 2011

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Reasons for Sentence

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1.  The defendant appeared before me this morning facing a total of three charges of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134.

2.  She pleaded guilty to the 1st and the 2nd charge but pleaded not guilty to the 3rd charge.  As a result of the plea bargaining, the prosecution is content that the 3rd charge be left in the court file and not to be proceeded with without the leave of the court if the defendant admits the facts and is convicted by me on those two charges. 

3.  The defendant was therefore convicted of the 1st and the 2nd charge accordingly. 

Facts

4.  The Summary of Facts which has been admitted by the defendant was simple and straightforward.  It discloses that in early July 2011, police conducted an undercover operation codenamed “Shipmaker” to tackle drug activities at places of entertainment where drugs were supplied to youngsters.  Undercover police officers were deployed to disguise as customers and to conduct control-buy of dangerous drugs. 

5.  Both charges took place in the vicinity of the female toilet of Club Zero located at the 15th Floor, Nathan Centre, Nos. 580G-580K, Nathan Road, Mongkok.  In both cases, two female police officers, PW1 and PW2, in both occasions had successfully purchased from the defendant some ketamine for the price of $100 and $400 respectively.  The drugs obtained from the defendant were subsequently confirmed by the Government Chemist to contain 0.42 grammes of ketamine (Charge 1) and 1.82 grammes of ketamine (Charge 2) respectively. 

Mitigation

6.  The defendant is a young offender of 20 years old.  She has however two previous criminal records which are all drug-related.  She has been twice sentenced to the Drug Addiction Treatment Centre (“DATC”) in 2009 and 2011 for possession of dangerous drugs.  She is still currently serving her current DATC Order which was imposed by the court on 31 August 2011.   

7.  Mr Cheung, counsel for the defendant, properly informed the court that the defendant was committing these two present offences while she was still on bail of the possession of dangerous drugs case which resulted in her being sent to the DATC. 

8.  Mr Cheung further informed the court that the defendant’s parents are in court today to support their daughter and also submitted for my consideration letters of mitigation written by the defendant herself and also by the parents and for my consideration. 

9.  No doubt the parents urged me to be as lenient as possible and at the same time the defendant has shown extreme remorse in her letter and asked me to consider perhaps allowing her to continue her training in the DATC. 

10.  The defendant, according to Mr Cheung, left the school after Form 4 level and thereafter became acquainted with some dubious peers.  This resulted in her being lured to the habit of taking drugs, firstly cannabis and subsequently ketamine. 

11.  At the time of the offence, the defendant was employed as a bartender in the subject premises, namely, Clue Zero, and through the assistance and the connection of another female colleague, she was able to obtain the supply of ketamine. 

12.  Although, the defendant is urging me to consider a fresh DATC Order or concurrent DATC Order so that her rehabilitation in the DATC will not be interrupted, Mr Cheung had already informed the court that he has already explained, and quite properly in my view, that the present two charges are far too serious and the court is very likely to consider a period of immediate custodial sentence. 

Sentencing Consideration

13.  Trafficking in dangerous drugs is of course a very serious offence and those who had been involved and convicted in such an offence should expect to be severely dealt with by the court.  Although the defendant is still under 21 and is a young offender, the sentencing option which is open for my consideration is really limited in the sense that she had already been sentenced to the DATC twice in the past, and as such, she was not to be considered as suitable for consideration receive training in places such as Rehabilitation Centre or Training Centre.

14.  The DATC Order is primarily suitable for cases concerning rehabilitation of an individual offender.  It can also serve as a punishment and deterrent for relatively minor drug-related offences.  However, for offences such as trafficking in dangerous drugs, the passing of a DATC Order would not be sufficient to reflect the gravity of offences.   

15.  As a sentencing court, I need to pass a sentence which is fit not only to the offender but also for the offence itself.  The conduct of the defendant, namely, the selling of dangerous drugs such as ketamine in an entertainment outlet to youngsters, is a very serious criminal conduct which should be punished severely.  

16.  Also the defendant was already on police bail when she committed these two present offences.  Be that as it may, she still saw fit to commit two offences, one after another, in a space of only about 8 days between and to sell drugs to young undercover female officers.  This is certainly an aggravating factor I cannot ignore. 

17.  According to the tariff guideline laid down in the case of SJ v Hii Siew Cheng [2008] 3 HKC 323 for a quantity of ketamine which is up to 1 gramme, it is within the court’s discretion, and for the quantity over 1 to 10 grammes, the sentencing range will be around 2 to 4 years.  

The Sentence

18.  In relation to Charge 1, I shall therefore use 12 months as a starting point but because of the presence of the aggravating factors indicated, namely committed the offences whilst on bail, the sentence is increased by 3 months to 15 months. The defendant had pleaded guilty and for this she would have a one-third discount on the sentence and the sentence is finally reduced to 10 months.

19.  In Charge 2, I shall use a starting point of 2 years.  Similarly, because of the same aggravating factor, the sentence is increased by 3 months to 27 months.  After the one-third discount, the sentence is reduced to 18 months. 

20.  In principle, the two charges took place in different dates and involving as it were two different drug buyers.  Therefore, a wholly consecutive or at least a partly consecutive sentence may be called for.  However, given the consideration of the totality principle, the fact that these two offences happened in the same premises and the fact that the defendant had already undergone a period of treatment and detention in the DATC, I shall temper the justice with mercy and finally decided to order that the sentence on both charges to be run concurrently and the total sentence on both charges is 18 months’ imprisonment.    

21.  By virtue of section 6A of the DATC Ordinance, since the defendant is now sentenced to a term of more than 9 months, this would mean that her existing detention order shall cease to take effect.