HKSAR v. LEUNG KING HUNG

DCCC 163/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 163 OF 2015

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REASONS FOR SENTENCE

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1.  The defendant, Leung King Hung, pleaded guilty before me to one charge of trafficking in a dangerous drug.

2.  The offence took place on the 1st day of January, 2015.  At around 6.55 pm on the day in question, two police officers on patrol noticed the defendant acting furtively.  They intercepted the defendant outside Ground Floor, Lung Cheung House, Lung Poon Court, Diamond Hill, Kowloon. 

3.  The defendant was searched.  As a result, one transparent resealable plastic bag containing 206 grammes of a powder containing 41.8 grammes of ketamine, the subject matter of the charge, was found in the right front pocket of the defendant’s jacket. 

4.  The defendant was arrested.  Under caution, he said that the ketamine was given to him by a friend Ah Chi for the defendant’s safe custody and he was promised $900 as remuneration.

5.  In a video-recorded interview conducted subsequently, the defendant reaffirmed his admission to the offence.

6.  The estimated street value of the ketamine seized is $25,956.

7.  At all material times, the defendant was in possession of the ketamine seized for the purpose of unlawful trafficking. 

8.  The defendant is now 18 years old.  In 2013 he was convicted of acting as a member of a triad society and was placed under a probation order. 

9.  Mr Yeung, in mitigation, told me that the defendant is not a drug addict.  Though the defendant’s antecedent statement states that he is a drug addict, Mr Yeung told me the defendant is not addicted to drugs.  He had tried ketamine in the past but he is not addicted to it.

10.  The defendant received education up to Form 3.  He is still single. Prior to the defendant’s remand, he was living with his parents who are in their 50s.  The defendant ceased schooling after he had completed Form 3 education as he had no interest in schooling.  He started to work at the age of 16.  He first worked as a fast food shop kitchen assistant.  Then he was employed on a casual basis as a delivery worker, making $9,000 per month.

11.  Mr Yeung told me the defendant associated himself with some colleagues who had triad background leading to his conviction of acting as a member of triad society in 2013.  He was placed under a probation order and he completed it in October 2014.

12.  When the probation order was in force, the defendant was able to lead a normal life and he had a regular job.  However, at the time of the offence in question, the defendant was unemployed; in fact he had been unemployed for 3 months. 

13.  On the day in question the defendant met Ah Chi, an acquaintance.  Ah Chi asked the defendant to keep the ketamine in question for his custody for a few hours, and the defendant was promised a reward of $900.  In order to earn the remuneration promised, the defendant agreed and he committed the offence. 

14.  The defendant confessed to the police at the first available opportunity.

15.  Since the defendant was remanded in custody, the defendant’s parents and his siblings had paid the defendant regular visits showing their support. 

16.  Mr Yeung asks me to bear in mind the young age of the defendant.  Though the defendant is not a man of clear record, his previous was not related to dangerous drug. 

17.  Mr Yeung drew my attention to the settled tariffs for trafficking in ketamine.  He submits that the drugs in question call for a starting point of 4 to 6 years’ imprisonment.

18.  In sentencing the defendant, I have borne in mind the facts of this case, the nature of the drugs in question, the quantity of the drugs and all the matters urged on the defendant’s behalf by Mr Yeung. 

19.  As rightly pointed out by Mr Yeung, applying the tariffs as set down by the Court of Appeal in the case Secretary for Justice v Hii Siew Cheng CAAR 7/2006 and CACC 126/2007, CAAR 7/2006, given the quantity of ketamine in question, the appropriate starting point after trial is one between 4 to 6 years. 

20.  In the present case, in my judgment, the appropriate starting point should be 5 years’ imprisonment.  The defendant pleaded guilty to the charge, he is entitled to the customary one-third reduction for his guilty plea.  That should bring his sentence down to 40 months’ imprisonment. 

21.  I have considered whether I should further reduce the sentence of the defendant in the light of his young age.  I have considered the case Secretary for Justice v Chau Tsz Tim and Secretary for Justice v Ho Wan Chiu CAAR 4/2014 and CAAR 5/2014.  The case concerns the issue of whether it is wrong in principle to sentence young offenders but not offenders of extreme youth who are convicted of serious drug trafficking offences to the training centre. 

22.  In paragraph 33 of the judgment, the Court of Appeal considered what Ribeiro PJ said in Wong Chun Cheong [2001] 4 HKCFAR 12.  Quote:-

“As the decided cases show, the interest of the community means that a sentencing tribunal has to consider whether, looking at the circumstances overall, a training centre order is in the community’s interest and, if not, to reject that option, despite the offender’s need for rehabilitative treatment, save in exceptional cases.

Thus, the training centre option may be rejected as not in the interest of the community where the need for deterrent sentences has to be given priority over the rehabilitative needs of the individual offender.”

23.  The Court of Appeal also considered the observation made by Stuart-Moore VP in SJ v Ko Fei Tat [2002] 4 HKC 59 at paragraph 64C to 65E.  Quote:-

“In regard to the respondent’s age and clear record (aged 16 at the time of the offence), this court stated in R v Lau Tak Ming [1990] 2 HKLR 370 at 386E-G, with specific reference to trafficking in heroin, but having equal force when applied to trafficking in “Ice”:

‘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 their nefarious trade.’”

24.  Bearing the passages I quoted in mind and the age of the defendant, in the end I am prepared to give the defendant an additional reduction of 4 months on account of his age.  That further brings the sentence down to 36 months’ imprisonment. 

25.  For the reasons given for the offence in question, I sentence the defendant to 36 months’ imprisonment.