HKSAR v. NGAI KA CHUN

DCCC928/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 928 OF 2012

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

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

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

Reasons for Sentence

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

1.  The defendant has pleaded guilty before trial to one charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

2.  The particulars are that on 24 May this year, at a staircase on the 15th floor of Mei Tin House, Hing Tin Estate, Kwun Tong, the defendant trafficked namely 115.89 grammes of a solid containing 96.79 grammes of ketamine. 

3.  The facts of this case are very straightforward. The defendant was caught red-handed collecting a bag containing smaller bags of ketamine from a fire hydrant of that building.  The defendant was caught red-handed and clearly acting as a drug mule delivering drugs.  In his possession at the time were three mobile telephones.  He has since admitted acting as a drug mule for a reward of $250.

4.  Defendant says he does not take ketamine and there is no evidence that he is a habitual drug taker.  Defendant is now 18 years old, previously had a clear record, and is the only child of two caring parents.  His parents had no idea the defendant was involved in or with drugs at all.  The school teacher that the probation officer has spoken to says that at school there was no evidence the defendant was involved with triad activity or triads.  There was also no evidence that he was involved with any drug or drug activity.  In fact he was a victim of occasional bullying rather than a troublemaker at school. 

5.  In mitigation on the previous occasion defence counsel submitted several letters from a social worker, defendant’s teacher, uncle, parents and the defendant himself.  I will not repeat their contents, but they expressed shock at the defendant’s involvement in drugs and all ask for leniency on his behalf. 

6.  There is also a medical report relating to the defendant’s mother.  And she has been a mental health patient for over 10 years.  In additional to mental health issues, she is a severe diabetic, has an ear, nose and throat problem, and is suffering from chronic knee pain.  Sadly the defendant’s father is not in great health.  He only last year had surgery for kidney stones, and earlier this month had a non-malignant tumour removed, again requiring surgery.  Obviously the defendant’s parents are distraught at the prospect of the defendant facing a term of imprisonment. 

7.  When the defendant was in primary school he was diagnosed by a psychiatrist as suffering from ADHD and was on medication. However, when the defendant was in secondary school he refused to continue with any psychiatric treatment.  This may be related, but in secondary school the defendant became very reclusive.  The probation officer described him as an “otaku”, which means that the defendant has severe home attachment.  He is home bound and bedroom bound.  He prefers not to socialise with anybody and is often found on the computer.  This may indicate that he has an underlying psychiatric problem that was not treated properly, nor diagnosed properly. 

8.  Nevertheless, his school attendance was good. He did not have many friends, according to his teacher.  He did not do well at school but his teacher opines that he was lazy but still intelligent enough to cope with school.  And as I have said, there is an indication that he was a quiet person at school and sometimes a victim of bullying.  Maybe this led to him being a target for others to recruit to commit this offence. 

9.  The probation officer says in the background report apparently due to his poor self-image he has been eager to gain recognition among his limited number of peers leading to the indexed offence committed at the threshold of adulthood.  The probation officer also herself is of the opinion he is quiet, immature, naïve and reticent. 

10.  This is a sad case.  It is sad that the defendant’s first brush with the law is in such serious circumstances.  I am not a psychiatrist, but in my opinion, having seen this report, I feel he could benefit from some professional help.  And I will order that he receive treatment if required whilst serving a sentence.  A term of imprisonment is inevitable.  But I hope the defendant, at 18, takes this opportunity to learn a trade or educate himself whilst in custody.  It is not too late to turn over a new leaf and stay away from bad peers who are a bad influence. 

11.  According to the Court of Appeal, the authority being Secretary for Justice v Hii Siew Cheng [2008] 3 HKC 323, there are guidelines for trafficking ketamine.  To indicate to the defendant how serious trafficking is, the Court of Appeal finds appropriate where 10 to 50 grammes of ketamine is trafficked, a 4 to 6 year term of imprisonment.  Where 50 to 300 grammes of ketamine is trafficked, a 6 to 9 year term of imprisonment is appropriate.

12.  In this case I repeat the amount is 96.79 grammes of ketamine.  As I am sure I said on the last occasion, mathematically I should consider a 6 years and 6 months starting point appropriate. 

13.  I adjourned on the last occasion for a background report.  I did that because you are young, you are only 18.  However, that does not carry much weight in offences of this nature.  However, the background report will assist me in sentencing.  I have considered the report’s contents, obviously the defendant’s plea of guilty, his age and his previous clear record.  I have referred myself to all the mitigation letters submitted. And as I said, I suspect the defendant could benefit from psychiatric help, but again that does not carry much weight when this offence is so serious. 

14.  Defendant, please stand up.  I will reduce that 6 years 6 months sentence starting point by 6 months to reflect the defendant’s background and mitigation.  I will therefore take a 6 year term of imprisonment as an appropriate starting point.  You have pleaded guilty.  You are entitled to a discount of two years. 

15.  For this offence you are sentenced to 4 years’ imprisonment.  I will order that the defendant receive psychiatric and/or psychological treatment if required whilst serving his sentence.