HKSAR v. LAM CHAK FUNG

DCCC 986/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL ACTION NO 986 OF 2014

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REASONS FOR SENTENCE

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Introduction

1. The defendant pleaded guilty to one charge of trafficking in a dangerous drug, contrary to s 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  The dangerous drug involved was 76.3 grammes of a powder containing 41.2 grammes of ketamine. 

2. The facts were straight-forward. The defendant was stopped by the police in To Kwa Wan at around 11:13 pm on 1 September 2014.  A total of 14 plastic bags containing ketamine the subject matter of the charge were found from his left rear trouser pocket.  Under caution, the defendant admitted that he acted as a courier for a male called “Ah Fung” who promised him $500 as remuneration.  The street value of the dangerous drug was $9,613.80.  At the time of the arrest, the defendant had also on him cash of $6,679.10.  He was not a drug addict.

Antecedent

3. The defendant is now aged 16.  He was 3 weeks short of 16 at the time of the offence.  He is an indigenous villager of Yuen Long.  His father is a chef making about $25,000 a month and his mother is a cashier working at a gas station earning around $9,000 a month.  His elder sister is a university student.  The defendant received education up to Form 1.  He has a clear record.

Mitigation

4. Mr Kwan, who acts for the defendant, informed the court that although the defendant was not good academically, he had not given up on himself.  The defendant excelled at extra-curricular activities like taekwondo and the boy scouts.  Certificates of award in relation to those were produced.  However, by the end of 2012 the defendant’s mother was found suffering intraventricular haemorrhage.  The defendant felt grief at it and decided to leave school so as not to burden the family financially.  After quitting school, the defendant attended several vocational training courses including barista and house renovation painting. However, because of the defendant’s young age, he was not able to find a job. Mr Kwan said that the defendant committed the present offence because of the influence by undesirable elements and the defendant’s hope to make quick money to ease the family’s burden.  Mr Kwan said that the defendant is a good nature youth and mitigation letters from two District Councillors and a village elder were submitted in support of that.  Mr Kwan said that the defendant is now remorseful. 

Sentence

5. Although the Summary of Facts which the defendant has admitted contains some paragraphs, namely paragraphs 8 to 10, which suggest that the defendant might have been involved in more than one offence, for sentencing purpose, I will not take those paragraphs into account.  The defendant is to be sentenced solely on the charge to which he has pleaded guilty.

6. According to the judgment of the Court of Appeal in Secretary for Justice v Hii Siew Cheng[1], the quantity of the ketamine in the present case falls within the 10 to 50 grammes tariff band which carries an imprisonment term of between 4 to 6 years. 

7. In HKSAR v Leung Kwai Ping & Anor (No 2)[2], the Court of Appeal says that sentence for trafficking is to be determined primarily by the quantity of drugs within the appropriate tariff.  The fact the accused was just a courier is not a mitigating factor. 

8. I am mindful of the young age of the defendant.  Normally, for an offender of the defendant’s age, the sentencing court should avoid imposing a prison sentence if there are other sentencing options open to the court: see s 109A of the Criminal Procedure Ordinance, Cap 212.  However, since trafficking in a dangerous drug is an excepted offence, the aforesaid section is not applicable to the present case. Moreover, in R v Lau Tak Ming & Others[3], the Court of Appeal has the following to say about the offence of trafficking,

“It must be borne in mind that these are offences of the utmost gravity which may well result in mitigating factors which, for less serious offences could lead to a discount, having little weight. By this we mean age and disability - though extreme youth may call for special consideration. Drug dealers are notorious for attempting to elicit sympathy from the Courts for their middlemen by the use of the blind, the maimed, the halt, the young and the aged in the carrying out of their nefarious trade.”

9. I also bear in mind the sentiment consistently expressed by the Court of Appeal in case authorities like Attorney General v Kong Kin Man[4], Secretary for Justice v Ko Fei Tat[5] and Secretary for Justice v Lau Shing Kit[6] to the effect that general deterrence is an important sentencing policy for this type of offences and that save in very rare cases, a training centre order for trafficking in substantial quantities of dangerous drugs was not appropriate. 

10. The quantity of dangerous drug involved in the present case is substantial for cases to be dealt with at this level of court.  Although the defendant is only 16, he cannot be described as “extremely young”.  That said, sentencing is an art rather than science.  The Court will still give such recognition as it can to the defendant’s youth and does not wish to leave him with the feeling that he is being crushed by the sentence.  Besides, I remind myself that the tariff bands are not entirely mathematical and that there is still some room, albeit not a big one, for manoeuvre within them so as to accommodate the individual circumstances of the case before the court. 

11. The starting point I adopt is 60 months’ imprisonment, which is slightly lower than what one would receive for trafficking in like quantity of ketamine following a strictly mathematical approach.  After giving the customary one-third discount for the plea, the sentence is reduced to 40 months.  Apart from the plea, I can see not mitigating factors which would further reduce the sentence.  Therefore, the defendant is sentenced to 40 months’ imprisonment.