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DCCC 28/2022
[2023] HKDC 748
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 28 OF 2022
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| Present: |
Mr Paulinus Lo, counsel on fiat, for HKSAR |
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Mr Jacky T K Lai, instructed by Edwin So & Co Solicitors, assigned by the Director of Legal Aid, for the defendant |
| Offence: |
[1] & [2] Trafficking in a substance represented or held out to be a dangerous drug（販運表示或顯示為危險藥物的物質） |
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[3] Failing to surrender to custody without reasonable cause （無合理因由而沒有按照法庭的指定歸押） |
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REASONS FOR SENTENCE
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1. In these proceedings, the defendant Lam Yin Ting, is charged with and pleaded guilty to three counts of criminal offences. At the time he was 17 years old.
2. The first two charges related to “Trafficking in a substance represented or held out to be a Dangerous Drug”, contrary to section 4A(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The 3rd charge is “Failing to Surrender to Custody without Reasonable Cause”, contrary to section 9L(1) and (3) of the Criminal Procedure Ordinance, Cap 221.
3. The first two offences happened respectively in June and July of 2021. At the time of the 1st charge, the defendant, with the corroboration of another person not in custody, sold a packet of substance to another person at the price of $2,500. He kept $1,000 as remuneration. The defendant knew that the substance sold was in fact rock sugar prepared in such a way as to resemble dangerous drugs.
4. The 2nd count happened on 14 July 2021. The defendant was stopped and searched by a police officer in Tsim Sha Tsui. He was found to be in possession of two plastic reseable bags containing 20.9 grammes of substances that were not illegal.
5. He admitted under caution that he was corroborating with the person referred to earlier and intended to sell the said substances as dangerous drugs. The charge involved 20.9 grammes of substances, which would, if they were real “Ice”, worth HK$13,838.
6. After the defendant was arrested on 7 January 2022, he was admitted to court bail but failed to surrender to the custody of the District Court on 25 January 2022. Therefore he was charged with the third offence.
7. The offence of trafficking in dangerous drugs is a very serious offence for which there have been very clear sentencing guidelines for difference kinds of dangerous drugs. In the present case, the defendant used a non-illegal substance and to passed off as dangerous drugs in order to defraud other drugs users. I agree with the defence counsel’s submission that this act carried a lesser degree of culpability than selling real dangerous drugs.
8. What makes this offence serious in the fact that the defendant had corroborated with another party now not in custody. There had been some planning and preparation to hatch a fraudulent plot against other people.
9. If the substance found on the defendant in the 2nd count were genuine “Ice”, the sentence would be at least 3 years. The defence counsel drew my attention to other cases of a similar nature whereupon a defendant was selling some legal substances pretending the same as dangerous drugs. They were given sentences ranging from 2 to 4 years.
10. In this case, the defendant was aged 17. He had a clear record, although subsequent to the dates of the present offence he did commit another offence and was sentenced to the compulsory reform programme in the Training Centre. As at the time of his conviction he is still 19 years old, by law I need to consider his rehabilitation as well as the punishment that befits the crime.
11. According to the Commissioner of the Correctional Services, the defendant is mentally and physically fit for the programme provided by the Training Centre.
12. Although the defendant had committed a very serious offence, in view of his age and the fact that at the time he had a clear record, I have to adopt rehabilitation as the primary consideration in sentencing.
13. Therefore, rather reluctantly, I decided to sentence the defendant for the three offences to Training Centre. I note that the Training Centre’s programmes involve a rather longer term of incarceration in addition to a period of supervision after his release. I believe that a Training Centre Order would be sufficient to serve as a form of punishment as well as a means to his rehabilitant.
14. I would have to warn the defendant that this is probably the last time that he could get away without a term of real imprisonment, but time would not be his side should he commit further offences again.
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