HKSAR v. NG CHEUK HUNG

DCCC1131/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1131 OF 2010

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Reasons for Sentence

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1.   The Defendant pleads guilty to one count of trafficking in a dangerous drug, namely ketamine.  The Defendant is also charged with another count of possession of a dangerous drug.  As the Defendant pleads guilty to the trafficking charge, the Prosecution agrees not to proceed with the possession charge and such charge is to be left in the court file.

2.   Officers from the District Special Duty Squad of Tai Po Police Station were conducting an operation at 19th floor of a building in Tai Po at 0930 hours on 28 July 2010.  The Defendant was observed to have come out from his abode at a unit on the 19th floor.  The officers saw the Defendant approaching a fire hose reel cabinet on the 19th floor.  He was seen to have opened the door of the cabinet and used the right hand to take something out from within.  The Defendant then put his right hand into his right front pocket of his pants.  The Defendant then used the right hand and took out a yellow plastic bag from inside the cabinet.  At this point, the officers approached the Defendant and revealed their police identities.  Upon seeing the officers, the Defendant immediately put the yellow plastic bag back into the cabinet.

3.   The Defendant was searched.  A resealable transparent plastic bag containing a powder was found inside the right front pocket of the Defendant’s pants.  The fire hose reel cabinet was also searched in front of the Defendant.  At the bottom of the cabinet, a yellow plastic bag containing 9 resealable transparent plastic bags, each containing a powder, was found.

4.   The Defendant was then arrested.  Under caution at scene, the Defendant stated that the substance found in the pocket of his pants was “K Chai”, and claimed that it was for his own consumption. That was the drug involved in the possession charge.

5.   In relation to the substance contained in the 9 bags which were found inside the yellow plastic bag, the Defendant admitted that they were “K Chai” and he was keeping them for a friend temporarily.  The latter drug was the subject matter of the trafficking charge. 

6.   At 1010 hours on the same day, the Defendant’s home was searched and an electronic scale was found on the chair inside the Defendant’s bedroom.

7.   In the subsequent video-recorded cautioned interview, the Defendant stated that he met a man called “Ah Fei” earlier and he told the Defendant that he would give some ketamine to the Defendant for free if the Defendant was willing to take 9 bags of ketamine for safekeeping.  The Defendant claimed that he accepted the offer and he then put the drug inside the aforesaid fire hose reel cabinet as per “Ah Fei’s” instructions.  The Defendant stated that, at the time of his arrest, he was checking to see if the drug was still inside the cabinet.

8.   Government chemist confirmed that, in total, 120.39 grammes of a powder containing 54.02 grammes of ketamine was seized.  The estimated street value of the ketamine seized is HK$14,326.31.

9.   The Defendant was born on 25 August 1994.  He was 15 years and 11 months old at the time of the commission of the offence, and is now 16 years and 6 months old.

10.   He has a clear record in Hong Kong, but he received a superintendent’s caution for an alleged offence of shop theft in July 2009.

11.   He finished Form 4 in the summer of 2010.  Because of the commission of the present offence, he was expelled from school.  He then worked as an apprentice cook in a pizza restaurant in Tai Po. Prior to the present detention, he lived with his family in Tai Po. 

12.   As the Defendant is now 16 years old, I have called for  background, detention centre and training centre reports before sentencing the Defendant. 

13.   The contents of the reports are unremarkable.  Due to insufficient parental supervision, the Defendant mixed with some bad peers, some of them with triad background, and as a result the Defendant took ketamine and cocaine once in April 2010.

14.   The Defendant was given pocket money by his parents.  However, as the Defendant was so extravagant, the money given to him could not satisfy his material desire.  Out of greed, the Defendant began stealing snacks and drinks in supermarkets.  He was caught for shop theft in July 2009, and because of this he received a superintendent’s caution.

15.   The Intake Officer also comments that the Defendant appeared to be evasive and cunning during the interview.  The Defendant stated that he agreed with his friend to take 9 bags of ketamine for safekeeping, and he received some ketamine and cocaine as his reward.  However, he was mute and embarrassed when being questioned about the electronic scale found in his bedroom.

16.   The Intake Officer is of the view that the Defendant is mentally and physically fit for detention in detention centre and training centre.  However, from the background information available and after a general assessment of the Defendant’s behaviour and attitude whilst on remand, the Intake Officer considers the Defendant more suitable for detention in a detention centre.

17.   According to Mr Liu, counsel for the Defendant, the Defendant was a football fan and enthusiast and took part in many school competitions.  It was only because of this interest that he mixed with some bad peers in the football pitch.  He also worked as a volunteer in a child and youth centre in 2009.  Mr Liu submits that it was only because of the Defendant’s misguided trust and confidence in his friends that led the Defendant to commit the present offence.

18.   For a serious offence such as trafficking in dangerous drug, the court has repeatedly emphasized that young age and clear record carry very little weight in mitigation.  As mentioned by the Court of Appeal in the case of AG v Kong Kin Man [1997] HKLRD 350, a case referred to me by Mr Liu, it is only in rare cases that detention in a training centre or detention centre is appropriate on a conviction for drug trafficking, and there is considerable public interest involved in showing by deterrent sentences that the courts will treat drug trafficking most severely.

19.   As compared with the situation in 1997 when Kong Kin Man was decided, the problem of drug abuse amongst youngsters is much more serious now and so there is a much stronger reason to call for deterrent sentences.  It is also hoped that deterrent sentences can deter criminals from engaging young persons to assist in their trafficking activities.

20.   Nevertheless, as mentioned by the Court of Appeal in Kong Kin Man, there may be rare cases in which the court may impose a detention centre or training centre order for such kind of serious offences.  Unfortunately, after reviewing the facts of the present case, I do not find that it falls within one of those category of cases. 

21.   First, I must say that I am not particularly impressed by the contents of the reports.  The Defendant has very little insight into his own problems.  The Defendant received a superintendent’s caution in July 2009.  I have reminded myself that this was not a conviction and that I cannot proceed on the basis that the Defendant had committed the offence which was the subject matter of the caution.  But with such experience, the Defendant should have been aware of the serious consequence of breaking the law, and yet the Defendant did not treasure the opportunity and stay away from the bad peers.  Further, the Defendant was evasive during the interview with the Intake Officer.

22.   From the reports, it is clear that because of these reasons, the Intake Officer is of the view that, as compared with the detention in the training centre, the harsh and tough training in the detention centre is more appropriate for the Defendant.

23.   In my judgment, by reason of the Defendant’s lack of insight into his own problems even at this stage and his loose attitude, I do not find that the present case falls within one of the rare cases that should justify the making of a training centre or a detention centre order.  I agree that detention centre or training centre order may be more desirable for the rehabilitation of the Defendant, but the court must also balance that with the gravity of the offence.  In the present case, I do not find that the contents of the reports help to tip the balance in favour of the Defendant.

24.   Further, the maximum period of detention in a detention centre is only one of 6 months.  Taking into account the quantity of the drug involved in the present case, I do not find that a detention centre order would adequately reflect the gravity of the offence. Hence, having considered all the circumstances of this case, I am of the view that immediate custodial sentence is the only option open to the court.

25.   As about 54 grammes of ketamine was involved in the present case, I adopt a starting point of 6 years’ imprisonment.  Giving the Defendant one-third discount for his plea of guilty, I reduce the sentence to 4 years’ imprisonment.  I also make a further reduction of 6 months because of the young age of the Defendant.  The sentence is therefore one of 3½ years’ imprisonment.