HKSAR v. SAM CHUN MAN

DCCC536/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 536 OF 2012

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Reasons for Sentence

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1.  In this case the defendant Sam Chun-man is convicted of one count of “trafficking in a dangerous drug”, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134, upon his plea and admission of facts.

2.  The facts revealed that at about 7.05 pm on 21st day of April 2012, the police found the defendant at No.58 Castle Peak Road, Sham Shui Po, intercepted him and demanded a search. As the result the police found four plastic bags of ketamine inside the front right pocket of the defendant’s trousers and four plastic bags of ketamine inside his underpants.

3.  Examination by the government chemist confirmed  that the bags of dangerous drugs contained a total of 65.6 grammes of a powder, of which 52.77 grammes were ketamine.

4.  Upon caution, the defendant told the police that he was working for someone who placed the K-chai in a car every day and asked the defendant to pick them up.

5.  Trafficking in dangerous drugs has always been considered a very serious offence in Hong Kong, and quite rightly so.  This court would not labour to point out the various social problems arising from abuse of dangerous drugs. Trafficking in dangerous drugs would increase such problems, and those traffickers are, in fact, trafficking in human misery and other social problems.

6.  The defendant basically admitted that he was a foot soldier; yet without his participation, the operation would not be possible and such offences would not have been that rampant, abuses of dangerous drugs would not have been so frequent.

7.  Therefore I do not consider the fact that the defendant did not himself own those dangerous drugs a mitigating factor.

8.  The last time the Court of Appeal considered the guideline for trafficking in ketamine was in the application for review in the case of Secretary for Justice v Hii Siew Ching, CAAR7/2006 and CACC126/2007, heard before HHJ Ma (the CJHC), Stuart-Moore VP and Stock JA.

9.  In a rather scholarly judgment by Stuart-Moore VP, the Court of Appeal examined the history of the sentencing guidelines, considered the evidence from experts and also from statistics of abuse and the trend of such abuses in recent years, and finally set out a very clear sentencing guideline at paragraph 95 of the judgment for trafficking in ketamine and ecstasy.

10.  The quantity involved in this case (52.77 grammes of ketamine) falls in the 10 to 50 grammes bracket for which the sentence should be in the range of 4 to 6 years imprisonment.

11.  In the present case, I do not see any reason to depart from the above guideline, especially after taking into account of the defendant’s admission that he did it on a daily basis.

Mitigation

12.  I now turn to consider the mitigating factors as put forward by counsel and from the circumstances of the case.

13.  At the time of the offence, the defendant was aged 19.  He had a clear record.

14.  In order to consider fully the background of his case, I had called for reports from the probation officer and the Commissioner of Correctional Services. In ordering such reports, the court had made it very clear to the defendant that this very act was no indication of the sentence the court was going to pass, as the state of authorities clearly indicated that a term of imprisonment - for that matter, a very substantial term - would be likely.

15.  The probation officer and also those acting for the Commissioner of Correctional Services have set out detailed background of the defendant; I would not repeat them.

16.  His story was not unique.  In fact, it was similar to a lot of other people who had gone astray in the course of their lives. Factors such as inadequate parental control and inability to hold on to a job and influence from dubious peers or even trial influence are factors which are commonly seen.

17.  In respect of the defendant’s age, the court noted that the defendant was not extremely young.  He is 19.  As such, he has all the core facilities of a mature person.  He could reason, he knew what was right and wrong, and he certainly should have been aware of the consequences of his conduct and be held responsible for them. Youthfulness is not a licence to do whatever one pleases. Therefore, his youthfulness and lack of previous convictions were not valid mitigating factors in the light of the particular circumstances of the case.

18.  The Commissioner of Correctional Services considered him both suitable for detention in a Detention Centre or a Training Centre, whereas the probation officer made no particular recommendation, although the latter had some reservations on the frankness of his disclosure in relation to his affiliation to the triad society.

19.  In fact, Litton VP, in the case of AG v Kong Kin Man [1997] 1 HKC 537, after reviewing authorities on sentencing’ had the following to say,

“The authorities on sentencing clearly establish that age - whether youth or old age - carry little weight when drug trafficking is concerned. It is only in rare cases that detention in a training centre is appropriate on a conviction for drug trafficking: see in particular, AG v Suen Yuen Ming [1989] 2 HKLR 403. There is a considerable public interest involved in showing by deterrent sentences that a court will treat drug trafficking most severely.”

20.  The weight of the authorities clearly indicated that trafficking in dangerous drugs offences are so serious that the court ought to adopt an approach that should send out a clear message to the public that such offences would not be connived, even when the offender was a young person.

21.  I could not find anything in the probation officer’s report and that furnished by the Commissioner of Correctional Services indicative that the defendant’s was a special case which might justify my departure from the norm, nor did I find anything in his lawyer’s submission which would persuade me that his case warrants special treatment.

22.  Therefore, in the present case, I considered the interests of the society outweighed the need to effect his rehabilitation. I consider that a term of imprisonment necessary to this end.

23.  As has been explained before, the quantity involved in this case warrants a term of imprisonment of about 6 years.

24.  Having considered the circumstances of the case, I have no reason to depart from it nor do I find any other particular factors in his background which would constitute valid mitigating factors.

25.  The only valid matter for reduction of the length of his sentence is his guilty plea.

26.  As in line with the authority, I would the 6 years’ imprisonment down to 4, to take effect immediately.