HKSAR v. YUEN HO FAT

DCCC 403/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 403 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 100.11 grammes of a powder containing 82.33 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 reveal that at about 6:17 pm on 21 February 2012, when the defendant was walking towards the staircase on 35^th floor, Shek Tai House, Shek Lei Estate, Kwai Chung, he was intercepted by two police officers.  Nothing was found upon the defendant when he was searched.  Nevertheless the defendant admitted to the police officers that he kept some dangerous drugs at his home at Room 3517. He was cautioned and under caution admitted that he possessed some ketamine at his home and it had nothing to do with his family members.  With the defendant’s consent, a house search was conducted at Room 3517.  A plastic bag containing 8 plastic bags containing the dangerous drugs the subject matter of the present charge as well as an electronic scale and 7 empty transparent re-sealable plastic bags were found inside a cabinet located above a bed placed in the sitting room.  The defendant was arrested for trafficking in a dangerous drug and under caution he claimed that the ketamine belonged to his friend and was given to him by his friend two days previously for temporary retention.  The dangerous drugs were examined by the Government Chemist who confirmed that it was 100.11 grammes of a powder containing 82.33 grammes of ketamine and traces of a powder containing ketamine were found on the electronic scale.  The estimated street value of the dangerous drugs was HK$9,138.63.  In a subsequent video interview under caution, the defendant said he had met an old friend, ‘Ah Fai’, 2 days previously at an amusement game centre but could not provide his contact details.  Ah Fai had asked him to keep the dangerous drugs for him as he could not take them home.  He agreed to do so and Ah Fai gave him the drugs to keep – he did not see Ah Fai again.  The defendant admits that he possesses the dangerous drugs in question for the purpose of unlawful trafficking.

3.  The defendant is now aged 20 years.  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.  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.

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 carefully considered their contents.  I have also considered the contents of the letter in mitigation written by the defendant.  I have also borne in mind all that has been urged upon me on behalf of the defendant by counsel.

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 20 years.  He is the younger child of his parents, who are divorced.  He lives with his mother and has only occasional contact with his father.  He left school without completing Form 2.  Prior to his arrest and remand, he was working as a transportation worker.  His mother is in court to show her support of the defendant.  The defendant has been in custody since his arrest and says he has had time to reflect whilst in custody – he missed his family and is remorseful.  He knows he has disappointed his family.  He knows he will receive a custodial sentence and promises to be law-abiding upon his release.  He is worried about his mother.  Counsel for the defendant also stressed in mitigation that it was the defendant himself who disclosed to the police officers that he had the ketamine in question at his home and he also told the police it had nothing to do with his family members.  He has four previous convictions, all in 2009, but none relating to dangerous drugs.  For his first offence, he was placed on probation.  However, when he committed further offences, he was sentenced to the Rehabilitation Centre and the probation order was discharged.

7.  The defendant’s background is set out in detail in the two reports before me and I do not intend to rehearse the contents herein.  Suffice to say that after his discharge from the Rehabilitation Centre in 2010, the defendant again got mixed up with his former triad-affiliated peers.  He was tempted to take ice in early 2011, and took ice occasionally thereafter.  He even trafficked in dangerous drugs in the Kwai Chung area in 2012 to earn money.  Mr Chow Lap-wai, who prepared the Correctional Services Department Report, opined that the ‘defendant had all along posed himself as being evasive and impatient during the interview.  He did not bother to answer questions concerning his previous wrongdoings and peer association.  Regarding the current offence, defendant excused that the dangerous drug belonged to his friend who asked him to keep it for temporary storage. Nevertheless, the defendant denied receiving any pecuniary reward in the current offence.  As impressed, the defendant did not have any reflection into his delinquent behavior at all. Defendant focused on the term of sentence and kept begging for a non-custodial sentence.  All in all, defendant’s determination to lead a decent life was absent’.

8.  The medical officer is of the opinion that the defendant is a drug dependant and therefore is not suitable for detention in a Training Centre.

9.  A lenient sentence is sought on behalf of the defendant.

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

11.  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 50 to 300 grammes of ketamine, a term of imprisonment of between 6 to 9 years is called for.

12.  In the instant case, the ketamine involved is 82.33 grammes. For this quantity, I would consider a starting point of 6 years and 3 months, that is 75 months.  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 young age carries little weight in mitigation. I have taken into account, as I have said, the contents of the reports before me.  I note that the defendant is not considered suitable for the Training Centre as he continues to be a drug dependant.

13.  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.  I have full sympathy with the defendant’s family situation.  Nonetheless, drug trafficking offences do call for substantial custodial sentences.  Having considered the quantity of ketamine involved in this case and the defendant’s personal background including his age, I am minded to adopt a starting point of 6 years and 3 months’ imprisonment.  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.As to the defendant’s drug addiction, he can be given treatment for this even in prison.

14.  The defendant is sentenced to 4 years and 2 months’ imprisonment, that is 50 months’ imprisonment.