HKSAR v. SHU KA WO AND OTHERS

 DCCC750/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 750 OF 2010

----------------------

----------------------

--------------------------------

Reasons for Sentence

--------------------------------

1.  The defendants have pleaded guilty to a number of charges involving trafficking in dangerous drugs.

2.  The 1st defendant has pleaded guilty to Counts 1 and 2 on the indictment which are charges where he is jointly charged with the 2nd defendant on two counts of trafficking in ketamine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134. On each charge, the quantity was small.

3.  The 2nd defendant has pleaded guilty to Counts 1 to 4 on the indictment. Counts 1 to 2 being charges where he is jointly charged with the 1st defendant and Counts 3 and 4 being charges where he is jointly charged with the 3rd defendant. Counts 1 and 2 being charges of trafficking in ketamine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134, where on each charge, the quantity of ketamine is small.

4.  Counts 3 and 4 were charges of offering to traffic in a substance held out to be a dangerous drug but which is not in fact a dangerous drug but in fact is a poison included in Part I of the Poisons List, contrary to section 4A(1)(b) and (3) of the Dangerous Drugs Ordinance, Chapter 134, namely para-aminobenzenesulphonamide, also known as sulphanilamide.

5.  The 3rd defendant has pleaded guilty to Counts 3 to 6 on the indictment. Counts 3 and 4 being joint charges with the 2nd defendant of offering to traffic in a substance held out to be a dangerous drug but which is not in fact a dangerous drug but in fact is a poison included in Part I of the Poisons List, contrary to section 4A(1)(b) and (3) of the Dangerous Drugs Ordinance, Chapter 134, namely para-aminobenzenesulphonamide, also known as sulphanilamide, and Counts 5 and 6 of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, namely ketamine.

6.  The Summary of Facts was admitted by each of the defendants. This disclosed that since November of 2009 PW1 was deployed as an undercover agent and enrolled as a Form 4 student in a secondary school in Tuen Mun. The 2nd and 3rd defendants also attended the school. PW1 came to know the 2nd and 3rd defendants and through the 2nd defendant he came to know the 1st defendant.

7.  On 14 December 2009 the 2nd defendant rang up PW1 and asked him if he wanted to buy ketamine. PW1 replied in the affirmative. The 2nd defendant rang PW1 again on 17 December 2009 and told PW1 that the dangerous drugs would cost him $400. PW1 agreed to the price.

8.  And at 1635 hours on 18 December 2009, PW1 met D2 and D1 at the Yau Oi Estate. The 2nd defendant asked PW1 to give him $400 which PW1 handed to D2 who then passed the money to the 1st defendant. The 1st and 2nd defendants then took PW1 to Tsui Ning Gardens and then to the St John Ambulance Tuen Mun Headquarters at Yau Oi Estate in Tuen Mun. There the 1st defendant handed over a plastic bag containing white powder to PW1 in the presence of D2, this being the subject matter of Charge 1.

9.  A few days later, on 22 December 2009, PW1 again received a phone call from the 2nd defendant who asked him if he wanted to buy ketamine. PW1 agreed and was told by D2 that the cost would be $700 which PW1 accepted.

10.  At 2020 hours on 23 December 2009, PW1 met the 1st defendant and the 2nd defendant at the Yau Oi Estate where PW1 handed over $700 cash to the 1st defendant. The 1st defendant told the 2nd defendant to take PW1 to wait outside the male toilet at the badminton court in the Tuen Mun Town Park. Subsequently, the 1st defendant joined PW1 and D2 and handed over to PW1 a plastic bag containing white powder, the subject matter of Charge 2, in the presence of D2.

11.  On 29 December 2009 PW1 received a telephone call from D2 again. D2 asked PW1 if he wanted to buy some ketamine. PW1 replied in the affirmative and was told the price was $700 which he accepted. At 2222 hours D2 brought PW1 to the Breakthrough Billiard Hall where PW1 handed $700 to D2. At 2225 hours D3 came to the billiard hall. D2 handed the cash to D3 and D3 handed over two plastic bags containing white powder, the subject matter of Charge 3, to D2 who then handed this to PW1. D2 and D3 then left.

12.  On 4 January 2010 PW1 met the 2nd defendant after school. The 2nd defendant asked PW1 if he wanted to buy some ketamine. PW1 replied in the affirmative. D2 then told him the price was $1,000. PW1 told D2 that that was too expensive, but D2 in reply told PW1 her profit was just $100. PW1 finally accepted the price.

13.  At 1715 hours on 5 January 2010, D2 met PW1 at the car park of Waldorf Garden where PW1 handed over $1,000 to D2. D2 told PW1 to wait there at the car park for her. At about 5.30 pm D3 came along to the car park and gave to PW1 three plastic bags containing white powder, the subject matter of Charge 4.

14.  On 13 January 2010 D3 met PW1 inside the school and asked him if he wanted to buy ketamine. PW1 replied that he did and asked the price. D3 told him $1,400 which PW1 accepted. D3 told PW1 he did not have sufficient stock and would deliver in two lots which PW1 agreed to.

15.  At 1515 hours on 14 January 2010, PW1 met D3 inside the male toilet of the school. PW1 paid D3 $700 and D3 gave PW1 a plastic bag containing white powder, the subject matter of Charge 5.

16.  On 15 January 2010, D3 met PW1 in the school and asked him if he wanted to buy ketamine. PW1 said that he did and D3 told him it would cost $700 which PW1 accepted. D3 told PW1 to meet him at the second recess at about 2.28 pm that day. PW1 went to the toilet of the school where he met the 3rd defendant and paid him $700 and received a plastic bag containing white powder, the subject matter of Charge 6.

17.  The defendants were subsequently arrested and all denied the charges under caution.

18.  The 1st defendant is now aged 21. D1 has 2 previous convictions including one for possession of dangerous drugs on 24 December 2007 when he was placed on probation for 21 months. His parents divorced shortly after he was born. He has lived with his mother and her boyfriend. He was educated to Form 3 and then underwent one year vocational training in Kwai Chung. He was a casual worker in logistics work. He lived with his girlfriend who has just had their baby on 28 July 2010. I was told that the baby was born prematurely and was still in the ICU unit.

19.  The 1st defendant has been detained after his arrest and has not yet seen his newborn baby. Letters were submitted from the 1st defendant, his parents and his girlfriend to seek leniency on behalf of the 1st defendant.

20.  The 2nd defendant is now aged 17 and is a student with a previous clear record.

21.  The 3rd defendant has just turned 17. Letters in mitigation from his parents, his former school principal and his employer were handed up seeking leniency on his behalf, as well as from the defendant himself. A letter from St Stephen’s Society indicating their willingness to accept the 3rd defendant into their residential drug rehabilitation programme has also been submitted.

22.  Counsel today also submitted a letter from the principal of the 2nd defendant.

23.  After hearing counsel in mitigation on behalf of each defendant, I adjourned sentence until 7 September calling for background reports for each defendant as well as training centre reports in respect of the 2nd and the 3rd defendants, having warned the 2nd and 3rd defendants of the likelihood of imprisonment.

24.  When the hearing resumed before me on 7 September 2010, counsel for the 2nd defendant was absent. A letter had been received from the 2nd defendant’s solicitors seeking an adjournment as counsel for the 2nd defendant had been hospitalized that morning. Counsel for the 3rd defendant also queried the finding that the 3rd defendant was a drug dependent as he had already been in custody for 6 months.

25.  As there was no objection to the matter being adjourned to accommodate the 2nd defendant’s counsel, I adjourned the matter until today. I also called for a medical report and an up-to-date training centre report on the 3rd defendant’s drug dependency status.

26.  D1 and D2 are jointly involved in two counts of trafficking in dangerous drugs on 18 and 23 December 2009 respectively, and the total quantity of ketamine involved is 3.91 grammes of ketamine in these two charges.

27.  The 2nd and the 3rd defendants are involved in two counts of offering to traffic in a substance held out to be dangerous drugs when in fact it was not a dangerous drug but a poison included in Part I of the Poisons List, namely 11.26 grammes of a powder containing para-aminobenzenesulphonamide, also known as sulphanilamide, which was held out to be ketamine, namely Counts 3 and 4.

28.  The 3rd defendant is further involved in two counts of trafficking in dangerous drugs on 14 and 15 January 2010 involving a total of 5.57 grammes of ketamine, namely the 5th and the 6th charges.

29.  The prosecution has submitted a report dated March 2010, “a report on study of composition of ketamine seizures in 2009 in Hong Kong” by the Controlled Drugs Section, Forensic Science Division of the Government Laboratory. Sulphanilamide was found to be the most popular adulterant of ketamine. Paragraph 23 on page 8 and paragraph 31 on page 10 of the report discloses that it is a drug commonly used for the treatment of bacteria infected urinary bladder infection and should not pose serious health hazards to drug addicts.

30.  Section 4(3) of the Dangerous Drugs Ordinance, Cap.134, provides that anyone who contravenes section 4(1)(a) of the said ordinance is liable, upon conviction on indictment, to a fine of $5 million and to imprisonment for life. Section 4A(3) of the Dangerous Drugs Ordinance, Chapter 134, provides that anyone who contravenes section 4A(1)(b) of the said ordinance is liable, upon conviction on indictment, to a fine of $500,000 and to imprisonment for 7 years.

31.  According to the guideline in the Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, the tariff for a conviction after trial of trafficking in 1 to 10 grammes of ketamine is 2 to 4 years.

32.  PW1 was deployed as an undercover police officer and enrolled as a Form 4 student in the school where the 2nd and the 3rd defendants were also students. I do view the supply of dangerous drugs to school students to be extremely serious. The availability of dangerous drugs and their supply to school students is a growing problem and one that causes grave concern in the community.

33.  Ketamine has been shown to be a prevalent drug in Hong Kong and its harm to individuals and to the community as a whole is tremendous. It is very commonly trafficked in Hong Kong and particularly amongst young people. This has become such a problem that last year the Court of Appeal saw fit to increase the deterrent effect on people trafficking in ketamine.

34.  The report I have before me in respect of each defendant sets out their backgrounds in detail and I do not intend to rehearse their contents herein.

35.  In passing sentence, I have carefully considered all that has been urged upon me by counsel in mitigation on behalf of each defendant as well as the various letters put before me on their behalf and the contents of each of the reports.

36.  D1, who is now aged 21, lives with his mother. His girlfriend gave birth to their baby, as I have said, on 28 July 2010. The 1st defendant has not seen his son as he has been remanded in custody after his arrest for the present offence. He has 2 previous convictions including one for possession of dangerous drugs in 2007 when he was placed on probation for 21 months and he had been admitted to two drug withdrawal treatment programmes.

37.  He told the interviewing officer that he had neither taken drugs nor affiliated with triad elements after his discharge from the Ling Oi Tan Ka Wan Centre, a residential drug withdrawal treatment programme. It was the 2nd defendant who had telephoned him for the ketamine because she knew he had taken it previously, so he helped her to get the drugs. The 2nd defendant was a friend of his cohabitee.

38.  In respect of the 1st defendant, an immediate custodial sentence is inevitable. The greatest mitigation of weight before me are his pleas of guilty, there is little else of weight.

39.  On the 1st charge, I take as a starting point 2 years’ imprisonment, discount this by one-third to reflect his plea, he is sentenced to 16 months’ imprisonment.

40.  On Charge 2, I take as a starting point 2 years and 9 months’ imprisonment, discount this by one-third to reflect his plea and sentence him to 22 months’ imprisonment.

41.  These are separate and distinct offences and warrant consecutive sentences. But I do take into account the totality principle of sentence. I shall order the 12 months of the sentence on Charge 2 be served consecutively to that of Charge 1 and the rest to be concurrent. That will make it 28 months’ imprisonment.

42.  The 2nd defendant is now aged 17 and has a previous clear record.

43.  The 3rd defendant is now aged 17 as well and also has a clear record.

44.  Section 109A of the Criminal Procedure Ordinance, Chapter 221, provides that no court shall sentence a person of or over 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 a person is appropriate. This provision, however, does not apply to offences of trafficking which are excepted offences.

45.  I nevertheless called for training centre reports on both the 2nd and 3rd defendants to provide me with background information on both defendants.

46.  In sentencing them, I do bear in mind the classical principles of sentencing and balance amongst the need for rehabilitation, retribution to deterrence and prevention. Whilst rehabilitation for a young offender is always an important consideration and it also serves the interests of the community, the need for punishment of the offender and deterrence to others must be given due regard, and in most circumstances for offences of this nature, be best served the interest of the community as a whole.

47.  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, see the Secretary for Justice v Ko Fei Tat [2002] 4 HKC at page 59.

48.  As I have said, the 2nd defendant is now 17. She comes from a single-parent family and came to Hong Kong from China with her mother 3 years ago. Because of language barrier, she had adjustment problems in school and could not catch up with other students. She got involved with wrong company and had even tried ketamine on a few occasions. She was a Form 4 student but ceased schooling in March 2010 after her arrest for the present offences.

49.  The 2nd defendant was impressed to be “calculative and cunning in character, her reflection over her misdeeds and her future rehabilitation plan was superficial”, according to the interviewing officer at the Lai King Correctional Institution who recommended training centre for her.

50.  The 3rd defendant is now 17. He, too, is from a single-parent family. He was studying in Form 4 but quit school in January of 2010. He was working as a part-time waiter until he was remanded in custody for the present offences. He, too, had got involved in bad company and his resultant lifestyle and wish to earn easy money has led to his being before the court today.

51.  He was confirmed by the medical officer who examined him to be a drug dependent. Therefore, training centre has not been recommended. He first took ketamine in 2008.

52.  All defendants have family members in court today to show their support.

53.  Both the 2nd and the 3rd defendants would have been fully aware of the gravity of what they were doing and the risk that would be involved when they were apprehended. Although young, it was they who approached the undercover police officer who was a fellow schoolmate and offered to sell him drugs. D3 even offered to sell the undercover police officer dangerous drugs when in the school premises and delivered the dangerous drugs in school. They quoted the price, arranged for the drugs, obtained payment and delivered the drugs.

54.  Having considered all the circumstances in respect of both the 2nd and the 3rd defendants, bearing in mind their ages, their previous clear record, their family support and all that has been urged on their behalves and their remorse reflected by their pleas of guilty which is the greatest mitigation of weight before me, and also taking into consideration what training centre could offer to young offenders such as these, in my judgment, the interest of the community prevails.

55.  Trafficking of dangerous drugs in schools in particular, and to school children cannot be tolerated and must be visited with deterrent sentences. The only appropriate sentence, despite their young age, must be immediate custodial sentences of imprisonment.

56.  I am told that the 3rd defendant is a drug dependent. I am told that he will be joining the residential drug withdrawal treatment programme offered by St Stephen’s Society. Since I am going to impose an immediate custodial sentence and in light of the length of his term, I am sure that the Correctional Services Department has sufficient and adequate facilities and services in prison effectively help him to get rid of his drug addiction.

57.  For offences contrary to section 4A of the Dangerous Drugs Ordinance, Chapter 134, the Court of Appeal in HKSAR v Li Chi Hung and others CACC18/2002 said:

“47.  It is clear from section 4A of the ordinance that the legislative intent is to make it an offence for a person who has held out to supply a dangerous drug which in fact is not a dangerous drug.  The accused in Lee Wing Chun was punished for his belief or his deceit, a state of mind, instead of his act of supplying the substance that he supplied.  We consider the criminality of the mental state of an accused a very important aspect in sentencing, besides his act of supplying a dangerous drug.  His culpability and therefore punishment would need fairly be related to both his mental state and his conduct.  However, in a case of drug trafficking, the kind of the drug actually involved in the trafficking should have a more weighty bearing than the mental element, just as the tariffs of sentence for drug-related offences hinge more on the quantity of the drug involved.

48.  On conviction on indictment, the maximum penalty under section 4A of the ordinance, for trafficking in a substance held out to be a dangerous drug, is 7 years’ imprisonment and a fine of $500,000, whereas the maximum penalty under section 4 of the ordinance, for trafficking in an actual dangerous drug, is life imprisonment and $5 million.  A comparison of the respective maximum penalties helps demonstrate the relative seriousness that the legislature attaches to the mental state and the effect of the conduct of the offender.”

58.  This view is echoed in HKSAR v Yeung Yeuk-hon HCMA319/2006. The court should take into account the nature of the drugs that they are purported to be, which in respect of Charges 3 and 4 was ketamine.

59.  For the 2nd defendant on Charge 1, I take as a starting point 2 years’ imprisonment, discount this by one-third to reflect her plea and she is sentenced to 16 months’ imprisonment.

60.  For Charge 2, I take as a starting point 2 years and 9 months’ imprisonment, discount it by one-third to reflect her pleas and she is sentenced to 22 months’ imprisonment.

61.  For Charge 3 and Charge 4, on each charge, I take as a starting point 18 months’ imprisonment, discount this by one-third to reflect her pleas and sentence her to 12 months’ imprisonment.

62.  These are all separate and distinct offences committed over a period of time and warrant consecutive sentences. But I do bear in mind too the totality principle of sentence. I order that 12 months of the sentence on Charge 2 be concurrent with that of Charge 1 and 10 months be consecutive. The sentences on Charges 3 and 4 are to be concurrent, but 6 months are to be concurrent with the sentence on Charges 1 and 2 and 6 months are to be consecutive, that is a total term of imprisonment of 32 months’ imprisonment.

63.  For the 3rd defendant, on Charges 3 and 4, on each charge, I take as a starting point 18 months’ imprisonment, discount this by one-third to reflect his plea and sentence him to 12 months’ imprisonment on each charge.

64.  On Charges 5 and 6, on each charge, I take as a starting point 2 years’ imprisonment, discount this by one-third to reflect his plea and sentence him to 16 months’ imprisonment on each charge.

65.  These again are all separate and distinct offences committed over a period of time warranting consecutive sentences. But I do bear in mind the totality principle of sentence. I order that the sentences on Charges 3 and 4 be served concurrently, 12 months of the sentence on Charge 6 will be concurrent with that of Charge 5 and 4 months be consecutive, and the sentences on Charges 5 and 6 be consecutive to that of Charges 3 and 4. The total term of imprisonment is therefore 32 months.