HKSAR v. WONG CHUN KIT

DCCC890/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 890 OF 2008 

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

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

Reasons for Sentence

1.  The defendant pleaded guilty to one charge of trafficking in a dangerous drug.

2.  In sentencing, I take into account the whole circumstances of the case, including its nature and facts, background of the defendant, mitigation put forward on his behalf by learned defence counsel, as well as information and recommendations contained in the reports.

3.  The facts of the case are simple.  The defendant was stopped in the corridor of a building.  Upon search, 23.18 grammes of powder containing 19.05 grammes of ketamine was found in the bag he was carrying.

4.  Under caution, he admitted to have just bought the dangerous drugs and was going to share it with his friends.

5.  The defendant is 18 years of age.  He completed education at Form 4 and had worked in a restaurant.  He is not a first offender.  He was on three occasions convicted of the offence of possession of dangerous drugs.  For the first conviction he was fined, and for the other two he was put on probation.  In committing the present offence he breached the Probation Order.

6.  In mitigation, learned defence counsel told the court that the defendant was remorseful.  He realised his drug problem and was determined to get rid of the vice habit.  He had initiated arrangements to receive voluntary drug treatment.  A letter from Ling Oi Centre was produced in this regard.

7.  In order to know more about the defendant, I considered reports from the Probation officer and Training Centre. 

8.  Before I adjourned the case I had already advised the defendant that it would be appropriate to impose an imprisonment term and the court would not be under any obligation to follow the recommendations in the reports, but of course, all sentencing options remained open before I made the final decision.  The reasons for obtaining the reports was mainly to facilitate the court to know more about the defendant, in particular, as the defendant was under probation at the time of the offence.  I also bear in mind the fact that the defendant is only 18 years of age.

9.  It is stated in the reports that the defendant was not keen at his studies and had been frequenting karaoke and amusement game centres.  He came into association with bad peers and even triads.  It is confirmed that he is still drug-dependent despite the period of remand. 

10.  Probation is not recommended.  It is not a surprise.  Indeed, despite the defendant had arranged voluntary drug treatment, in view of the nature and seriousness of the offence, probation is not appropriate.

11.  It is also stated in the CSD report that the defendant is not a suitable candidate for Training Centre, the main reason being that the defendant is still drug-dependent.  I agree to this view.

12.  In all the circumstances, I am of the view that an imprisonment term is warranted.

13.  Despite the defendant is drug-dependent, I do not consider it necessary to consider sending him to DATC for treatment.  In the light of the length of the imprisonment term I am going to impose there is sufficient facility in the prison to assist the defendant to get rid of the drug habit.

14.  Despite the defendant is only 18 years of age, the court has consistently held that for the offence of trafficking in dangerous drugs, unless it is a case of extreme youth, youth generally is not a reason to reduce the sentence. 

15.  Deterrence is an important factor in sentencing for this nature of offence and the court should not only give regard to the rehabilitation needs of the defendant. 

16.  If any precedence are required I am going to cite R v Lau Tak Ming [1990] 2 HKLR 370; AG v Suen Yuen Ming [1989] 2 HKLR 403; and R v Yiu Kwong Shui, CACC377/1995.  The defendant is not a person of extreme youth. 

17.  The offence was committed on 13 August 2008.  The case of S J v Hii Siew Cheng, CAAR 7/2006, is applicable.  In that case the Court of Appeal indicated a tariff for sentencing for traffickers in ketamine.  If the quantity of the dangerous drug involved is 10 to 50 grammes, the sentence is 4 to 6 years’ imprisonment.

18.  The defendant said he was going to share the dangerous drug with his friends.  In that regard, I have regard to S J v Hii Siew Cheng.  In that case the Court of Appeal said, amongst other things, that making a fine distinction between different forms of trafficking and the motives behind them will only serve to undermine the core policy of providing a consistent level of sentencing for traffickers based on the weight of the narcotics being trafficked.  It has to be borne in mind the evil behind all aspects of trafficking in drugs which the courts have a duty to deter.  It is ultimately the supply of dangerous drugs to the public whether or not this is done for financial gain that needs to be dealt with rigorousley.

19.  While some of the social or non-commercial trafficking cases involve small quantities of drugs and can probably be regarded as falling into the lower end of the sentencing scale, having considered what is said in this case, I am not of the view that the present case is one which warrants a reduction in sentence or departure from the tariff.  In this regard, I have also noted what the Court of Appeal said in HKSAR v Wong Suet Hau [2002] 1 HKLRD 69.

20.  Bearing in mind possession of dangerous drugs itself carries a term of imprisonment and the latent risk factor in this case, I do not consider this matter carries much weight as mitigation.

21.  Having considered the whole circumstances, including mitigation, I do not consider there exists sufficient reasons not to follow the tariff.  However, I consider it appropriate to adopt the lowest starting point as suggested in the tariff band.  I adopt 4 years as the starting point.  The defendant is entitled to a one-third discount for his guilty plea.

22.  Having considered the whole circumstances, including mitigation, I am of the view that this is the extent of discount the defendant is entitled to. 

23.  Based on the matters aforesaid, I sentence the defendant to 32 months’ imprisonment.