HKSAR v. CHAN HON WA

DCCC81/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 81 OF 2012

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Reasons for Sentence

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1.  The defendant was convicted upon his guilty plea of a single charge of trafficking in dangerous drug on 16 March 2011.

2.  In sentencing, I have taken into account the whole circumstances of the case, including its nature and facts, in particular the nature and quantity of the dangerous drugs involved, background of the defendant as well as the mitigation put forward on his behalf.

3.  The case against the defendant is simple.  The defendant was seen walking alone by a team of police officers in plainclothes during an anti-narcotics operation in the vicinity of a public housing estate in Sheung Shui, New Territories.

4.  The defendant was intercepted but nothing suspicious was found.  He was later escorted back to his residence for a house search.  The dangerous drugs as set out in the charge together with some trafficking paraphernalia such as two electronic scales and 148 resealable plastic bags were subsequently found in his bedroom during a search by police officers.

5.  Under caution, the defendant admitted that all the dangerous drugs were ketamine and he was the sole occupant of the bedroom. More importantly, he admitted selling the ketamine to others using the trafficking paraphernalia for packaging.

6.  The dangerous drug concerned was 0.22 kilogramme of a powder containing 0.09 kilogramme of ketamine. 

7.  The defendant is 18 years of age.  He has a clear record.  He left school in early 2011 without completing Form 4 and started working, firstly as a restaurant waiter and later as a transportation worker for a few months shortly before he was arrested for the present offence.

8.  In mitigation, the court was told that the father of the defendant died of cancer some five years ago when he was only 14 and the family was since living on Public Assistance.  The mother was suffering from depression and the elder sister epilepsy.

9.  The court was further told that the defendant was remorseful and promised not to commit any offence again.  Four letters of mitigation were submitted to the court by the defence counsel for consideration in the last occasion.  They were respectively written by the defendant, his mother, a District Counsellor and a social worker.  I am not going to refer to the contents of these letters.  Suffice it to say that the defendant went astray because of his association of his undesirable peers and he was lured into the habit of taking dangerous drugs. 

10.  It was stressed that the defendant had learned the lesson and urged the court to be as lenient as possible.  He still has the support of the family and his family members and his friends attended the court today to show their support. 

11.  In view of the defendant’s age and clear record, in the last occasion, the defendant counsel submitted a number of District Court cases in an attempt to persuade the court to impose a Training Centre Order. 

12.  I have made it clearly that trafficking in dangerous drugs is a very serious offence and the sentence should not only fit for the offender but should also fit for the offence.  I finally acceded to the request of obtaining a Training Centre Report first but also stressed to the defendant that if he was found to be a drug addict, he would definitely be considered unsuitable for detention in a Training Centre. 

13.  Today, I have the benefit of reading the Training Centre Report and it confirms that the defendant is indeed a drug dependant and it also contains details of the history of his taking of different kinds of dangerous drugs including cocaine, ketamine, “Ice” and cannabis.  The present case, however, involved trafficking in ketamine only.

14.  As regards ketamine, the harm the drug may bring into an individual and the community as a whole have been fully explored and recognised since the case of SJ v Hii Siew Cheng [2009] 1 HKLRD 1.  In that case, the court held that for trafficking in a quantity of 50 to 300 grammes of ketamine, a sentence between 6 to 9 years’ imprisonment should be considered. 

15.  Having considered the whole circumstances of the present case, I see no reason to depart from the guidelines.  According to the Training Centre Report which the defendant has admitted, all the ketamine seized by the police was not for his own consumption but for delivering to the others. 

16.  In my judgment, applying the guideline in the context of the present case, strictly speaking, a starting of 6½ years is appropriate for trafficking in that quantity of ketamine.  After giving him the customary one-third discount to reflect his guilty plea, the sentence should normally be 52 months’ imprisonment.  

17.  However, in a very recent Chinese judgement HKSAR v Chan Ka Fei CACC330/2011 (unreported) dated 28 March 2012, which was only two days ago, the Court of Appeal has reduced the total sentence of a 17 years old drug trafficker on account of his age and his clear record. 

18.  In that case, while the Court of Appeal had repeatedly stressed that youth is not necessarily a mitigating factor for fear that those engaged in trafficking would made use of young people to participate in this evil crime, it recognised that in individual case, the court can still exercise its discretion to reduce the sentence by reason of the defendant’s age and his clear record.  The Court of Appeal expressed that sometimes the young defendant may be subjected to the undue influence of the others to commit crime due to immaturity.  The young defendant may also not aware of the seriousness of the offence which he has committed.

19.  The defendant told the officers of the Correctional Service in the report that it was the first time he got involved in the drugs delivery dealing.  He had certainly learned his lesson in the hard way and he promised that he would never re-associate with the undesirable peers and he would never commit any crime.

20.  In all the circumstances, I am prepared to give the defendant a further discount of 4 months on account of his age and clear record.  Based on the matters aforesaid, I therefore sentence the defendant to 48 months’ imprisonment for the charge.