HKSAR v. LEE KA ON

DCCC 537/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 537 OF 2010

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

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

Reasons for Sentence

1. The defendant has been convicted after trial of one charge of trafficking in a dangerous drug, namely 53.89 grammes of a powder containing 43.51 grammes of ketamine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

2.   The defendant was intercepted by police officers as he and another male were approaching his vehicle where it was parked at the carpark of the Fung Wah Estate. As the police officers declared their identity and approached him, he was seen to throw 2 packets containing the dangerous drugs as set out in the particulars of the charge away. The 2 packets were subsequently retrieved. The defendant was arrested and cautioned for the offence of trafficking in dangerous drugs and under caution he said ‘Ah Sir, I sell these 2 packets of k-chai for $800. Give me a chance’.

3.  After hearing Counsel in mitigation, I adjourned the matter until today for sentence, and called for a background report, which is now before me.  The contents have been explained by Counsel to the Defendant and he agrees with the contents.

4.  The defendant is now aged 20 years.  He was 19 years old at the time of the offence.  He has a clear record.  He is the only child of his parents.  His parents are divorced and he lives with his mother. He studied until Form 5, and then started working.  At the time of the offence he was working as a cleaner earning $6,000 a month.  His mother is supportive of him, and he would contribute regularly to her. She is here today in Court to show her support.

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

6.  I do bear in mind the classical principles of sentencing and balance amongst the need for rehabilitation, retribution, deterrence and prevention.  Whilst rehabilitation for a young offender is always an important consideration, and it also serves the interest of the community, the need for punishment of the offender and deterrence of others must be given due regard, and in most circumstances, for offences of this nature, they best serve the interests of the community as a whole.  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.  Here, the quantity is substantial.  The defendant would have been fully aware of the gravity of what he was doing and the risks that would be involved if he was apprehended.

7.  He has been convicted after trial and has shown no remorse.  There is really little else in mitigation before me.

8.  In the Secretary for Justice v Hii Siew Cheng & Anor. [2009] 1 HKLRD 1, the Court of Appeal laid down the tariffs for trafficking in ketamine.  For trafficking 10 to 50 grammes of ketamine, a term of imprisonment of between 4 to 6 years is called for.

9.  In the instant case, the ketamine involved is 43.51 grammes. For this quantity, I consider a starting point of 5 years, that is 60 months, to be appropriate.  The court has said time and again that there is a need for deterrence when dealing with offences like trafficking in a dangerous drug, and that young age carries little weight in mitigation.

10.  In the present case, the matters urged upon me cannot detract from the fact that a deterrent sentence is called for as our society needs to get the message that trafficking in a dangerous drug is a very serious offence.

11.  The defendant is sentenced to 60 months’ imprisonment.