HKSAR v. HO CHEUK YIU AND ANOTHER

DCCC669/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 669 OF 2011

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Reasons for Sentence

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1.  I am now dealing with the sentence on D1, who has pleaded guilty to both charges. Both counts are trafficking in dangerous drugs.

2.  In Charge 1, D1 and D2 jointly trafficked in 13.99 grammes of a powder containing 10.12 grammes of ketamine and 0.26 gramme of a solid containing 0.26 gramme of cocaine.  That offence occurred on 23 April this year.  The 2nd charge is against D1 only.  He on the 29th day of April 2011 trafficked in 49.56 grammes of a powder containing 32.89 grammes of ketamine.

3.  The facts relating to Charge 1 are as follows. On 23 April 2011, two officers spotted both defendants acting suspiciously in Kwai Chung area.  They put them under observation.  D1 was seen handing to D2 something D2 took that.  The officers intercepted both defendants.  It was found that the thing that D1 had handed to D2 was actually three plastic bags containing those drugs named in Charge 1. 

4.  Under caution, D1 admitted that he bought the dangerous drugs from a man called Ken for $1,000 for his own consumption, while D2 admitted that he carried the drugs for D1 for a reward of $70. 

5.  The estimated street value of the drugs was $1,050. 

6.  The defendants were put on police bail.  Six days later, D1 alone committed Charge 2. 

7.  The facts of Charge 2 are as follows.  On 29 April 2011, some officers saw D1 acting furtively in Kwai Chung area, in a housing estate.  D1 was intercepted.  In his pocket, police found 12 bags of ketamine, the subject matter of Charge 2. 

8.  Under caution, D1 said the ketamine was for his own consumption.  He bought the drugs from the same man Ah Ken at $2,000. 

9.  The estimated street value of the drugs this time was about $3,600.

10.  D1 was born on 19 October 1993.  He was 17 years and 6 months when he committed both offences.  He is now almost 18.  In 2009, he was twice convicted in the District Court.  In May that year, he was convicted of robbery and sent to rehabilitation centre.  In August the same year, he was convicted of conspiracy to rob.  He was also sent to rehabilitation centre.

11.  In mitigation, counsel says D1 only received education up to Form 2.  He did not like school.  He had a poor discipline though he was living with his parents and sister.  D1 had no fixed employment. He had worked as a casual worker earning a few thousand dollars a month. 

12.  Counsel says D1 has been addicted to dangerous drugs since the year of 2008.  He was curious so he got addicted and he was also influenced by undesirable peers.  Counsel says D1 has learned his lesson.  He is now remorseful.  Counsel asks this court to be lenient towards D1.  Counsel has suggested training centre as a kind of rehabilitation in D1’s case.

13.  In explaining why D1 committed the second offence while he was on police bail for the first offence, counsel says D1 had already got the drugs with him.  After being arrested for the first offence, he wanted to get rid of the drugs he had, so he tried to sell them to other people.

14.  D1 is convicted of two serious charges, both trafficking in dangerous drugs.  The second one is more serious in the sense that it involves a greater quantity of dangerous drugs, namely ketamine.  The 2nd charge also has an aggravating factor, that is D1 committed this offence only six days after he was arrested for Charge 1.  Apparently, D1 had not learned any lesson since the first arrest.  At least by then, he was not remorseful at all.

15.  Although D1 was young now and at that time, he was not extremely young.  He was over 17.  He should have realized the seriousness of dealing with drugs, but he did it not once but twice. 

16.  The 1st charge involves smaller quantities but there were two kinds of drugs there, ketamine and cocaine.  In recent years, many young people involve themselves in trafficking in ketamine.  It is probably that the real traffickers make use of young people to traffic ketamine for them.  The society and the courts have now viewed this as a very serious matter, so in 2008 the Court of Appeal has laid down strict sentencing tariffs for trafficking in ketamine while that for trafficking in other dangerous drugs like cocaine has already been in place.

17.  D1 had already been caught in 2009 twice.  On those two occasions he was sent to rehabilitation centre.  Apparently, he had not rehabilitated himself.  And, as said, he trafficked in dangerous drugs not just once but twice in this case, and he committed the second offence only six days after he was caught for the first one.

18.  I do not think D1 deserves any leniency.  His greatest mitigation, and the only mitigation, in this case is his pleading guilty to both charges.  According to the case of Hii  Siew Cheng and Wong Yat San, trafficking in ketamine over 10 grammes to 50 grammes would attract 4 to 6 years’ imprisonment as a starting point.

19.  As said, Charge 1 also involves a small amount of cocaine apart from ketamine.  So for Charge 1, I would adopt 4½ years’ imprisonment as the starting point in D1’s case.  After one-third discount, he is sent to prison for 3 years on Charge 1.

20.  Charge 2, if D1 was not on police bail while committing this second offence, I would adopt 5 years’ imprisonment as the starting point.  But for the fact that he committed this second offence only six days after the first offence, I would enhance the starting point by 6 months.  Thus, I would adopt 5½ years’ imprisonment as the starting point for Charge 2.  He would get one-third discount for his plea of guilty.  So on Charge 2, I would send him to 44 months’ imprisonment. 

21.  These two offences are separate offences.  In theory, the two terms of imprisonment should run consecutively.  But that would far exceed the jurisdiction of the District Court which is 7 years’ imprisonment.  Normally, a convict pleading guilty to his charges would get one-third discount, but it depends on the circumstances.  In law, there is the concept of meaningful discount, which means sometimes a convict would not get the full one-third discount but a discount that is less than that one-third but still meaningful in his case. 

22.  In D1’s case, I would order 18 months’ imprisonment of his sentence in Charge 1 to run consecutively to the whole term of Charge 2.  That would make a total term of 62 months’ imprisonment, that is 5 years and 2 months’ imprisonment.  That would be 6 months more than two-thirds of the 7 years’ maximum that can be imposed in the District Court.  But as said, sometimes a convict should not get the full one-third discount.  In D1’s case, he committed two very serious trafficking charges.  He is not a very young offender.  Actually he can be dealt with in the High Court.  But for the fact that his case was only transferred to the District Court for disposal, the maximum sentence that can be imposed is limited to 7 years. 

23.  D1 pleaded guilty to both charges in the circumstances as I mention.  He is now sent to prison for 5 years and 2 months for his pleas.  He still gets a reduction of one year and 10 months from the maximum of 7 years.  I would consider that as still meaningful; actually very meaningful in his case, a convict who committed one offence after another within a period of days.