HKSAR v. YOUNG KAM YUEN

HCCC257/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 257 OF 2009

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT:   Young Kam-yuen, on 14 August of 2009, you pleaded guilty in the Magistracy to a single charge of unlawfully trafficking in a dangerous drug, namely, 244.58 grammes of a powder containing 200.95 grammes of ketamine.  You accepted as accurate the Summary of Facts in which the circumstances of the commission of the offence were described.  As a result, you were committed to this court for sentence.

     On October 9 of 2009, in this court, you confirmed your acceptance of the Summary of Facts as the basis of your plea of guilty, from which you are convicted and on which this court has to pass sentence.

     Turning to the facts.  Shortly after 9 pm on 25 February 2009, you were observed, by a plainclothes officer, walking from the lift lobby on the 36th floor of Hong Kin House in Tsz Hong Estate, in Wong Tai Sin.  You were walking towards the garbage room.  Then you were observed walking towards the other side of the lift lobby.  The police officer observing you, and a colleague of his, intercepted you at that place and, having identified themselves as policemen, took you to a nearby staircase where you were searched. 

    During that search, you removed, from beneath your underpants, a plastic bag containing a white powder.  On examination, the white powder was found to contain 200.95 grammes of ketamine, the subject of the charge.

     Having been arrested and cautioned, you said that you were delivering what you called ‘the K Chai’ for others for a payment of $500, claiming that this was the first time you had delivered drugs.  In a subsequent video interview conducted under caution at Wong Tai Sin Police Station, you explained in more detail the circumstances in which you had come to be delivering the dangerous drug. 

    You said that, earlier that evening, at the 369 Amusement Games Centre in Tsz Wan Shan, you had been approached by a man whom you called ‘Ah Man’, who had asked you if you were short of money.  As agreed with him, you then retrieved the dangerous drugs from where they lay concealed in a gap above a water tank inside the toilet of McDonald’s in Argyle Street in Mongkok. 

    Having concealed the plastic bag of dangerous drugs in your underpants, you then set off by taxi to go to the 36th floor of Hong Kin House where you were to leave the dangerous drugs at the rear staircase.  For your services, it had been agreed that you would be paid $500. 

    On 9 October, counsel then appearing for the prosecution, Mr Peter Power, provided the court, helpfully, with a number of authorities.  Guidelines for sentencing in cases of unlawful trafficking in ketamine are set out in the judgment of the Court of Appeal in The Secretary for Justice v Hii Siew Cheng reported in 1 HKLRD at 1. 

    Of the relevance or otherwise of age, in particular youth, to the determination of the appropriate sentence to be imposed in cases such as this, Mr Power referred to other authorities.  In The Secretary for Justice v Ko Fei Tat, reported in [2002] 4 HKC at 59, the Court of Appeal were dealing with an application for review of sentence, namely, an order of detention in a training centre imposed upon the respondent upon his pleas of guilty. 

    The respondent was almost 17 years of age at the time that he committed the offences, over a period of about six weeks.  The offences comprised three counts of trafficking unlawfully in a dangerous drug.  Firstly, on 28 August 2000, in just over 26 grammes of methamphetamine hydrochloride - that is “Ice”; secondly, on 7 September that year, in just over 13 grammes of “Ice” and just over 10 grammes of cannabis; and thirdly, on 6 October of that year, in just over 16 grammes of cannabis together with a count of conspiracy to traffic unlawfully in 1 ounce of “Ice” on that latter date.

    On each occasion of unlawful trafficking, the respondent was personally involved in handing over the dangerous drugs and twice received money.  On the first occasion, it was he who had solicited the custom of the undercover officer for the purchase of cannabis which he provided on a subsequent order.

    Of the factor of the respondent’s age at the time of the commission of the offence and his clear record, in the judgment of the court delivered by the Vice-President, Stuart-Moore J, the court cited with approval the observations made by that court in respect of unlawful trafficking in Lau Tak Ming, that the offence being one of the “utmost gravity,” age, other than extreme youth, was a mitigating factor of little weight.

    Of the nature of that respondent’s conduct, the Vice-President observed:  “Substantial quantities of ‘Ice’ were being trafficked by an active, persistent and willing participant in the trade who was driven by greed to act in the way he did”. 

    In quashing the order for detention in a training centre, the Court of Appeal stated that it was appropriate to take a starting point of 7 years’ imprisonment for the two counts of unlawfully trafficking in “Ice”.  In the event, the court imposed concurrent sentences of 4½ years’ imprisonment and 2 months respectively.

    In HKSAR v Abdallah, reported in [2009] 2 HKLR at 437, the Court of Appeal gave further guidelines in sentencing in cases of unlawful trafficking in amounts of more than 600 grammes.  But in doing so, albeit in the context of heroin and not ketamine as this court is dealing with, the court made some observations that are relevant to factors of mitigation. 

    At paragraph 32 of that judgment delivered by the Vice-President, Stuart-Moore J, this was said:  “Meaningful mitigation, apart from a plea of guilty, is rarely available.  The message must consistently be delivered, even to the vulnerable, such as the relatively young, that the vast majority of vulnerable people do not succumb to pressure and do not resolve their problems by engaging in this illicit and dreadful trade.”

    Turning then to the mitigation that is advanced on your behalf.  You are 17 years of age, having been born in Hong Kong on 18 December 1991.  It follows that you were 17 years and 2 months of age at the time of the commission of this offence.  At that time, you lived at home in Tsz Wan Shan with your unemployed parents, your father of 70 years of age and your mother of 43.  You have not been convicted of any criminal offence and you, of course, have pleaded guilty.  You were educated to Form 3 level.  You attended at least part of a course in building services. 

    In light of your age, your plea of guilty and your clear record, your counsel, Mr Chow, invited the court to call for reports as to your suitability to be the subject of an order for detention in a training centre.  In support of that submission, he referred the court to the judgment of the Court of Appeal in The Attorney General v Kong Kin Man reported in [1997] HKLR at 350.  He acknowledged that for such an order to be made, the court would have to be satisfied that you fell into the “rare category” where such a sentence is appropriate. 

    Given your circumstances and in order to explore every possible avenue for sentence, this court has ordered the production of that report.  The court is also mindful of the observations passed by the Court of Appeal in The Attorney General v Suen Yuen Ming [1989] 1 HKC at 430.  There, the court was dealing with an application for the review of a sentence.  That respondent had been ordered to be detained in a training centre. 

    He had pleaded guilty to two charges of possession of dangerous drugs for the purpose of unlawful trafficking, the first in respect of a mixture containing 19.6 grammes of salts of esters of morphine - that had been found on his person; second, in respect of a mixture containing 17.5-odd grammes of the same substance, found at his home where he lived with his girlfriend and their 2-year-old child. 

    At the time of the commission of those offences, the respondent was only 17 years and 8 months of age.  He had not been convicted of any criminal offence, nor was he a drug addict, but there were particular circumstances of mitigation in his case.  It was accepted by the court that he had given way to threats, from a former undesirable companion, that his girlfriend would be harmed and his family cooked food store disrupted if he did not assist in the drug activity. 

    So that it was only in those special circumstances that the court did not interfere with the order for training centre.  The Vice-President, Silke J, said this:  “It is only in very rare cases such as we think this to be that a training centre order would be considered a proper sentence where substantial quantities of dangerous drugs are involved.”

    In the case your counsel has referred me to, The Attorney General v Kong Kin Man, similar special circumstances were found, but the court went on to say this, at page 351:  “There is a considerable public interest involved in showing, by deterrent sentences, that the courts will treat drug trafficking most severely.”

    Turning then to the report that the court now has before it, it is apparent from the report that you acquitted yourself satisfactorily up until you entered Form 2.  Then you began to associate with bad company and, in mid-2006, even tried abusing ketamine and cannabis.  The report continues in these terms:

    “After being promoted to Form 3, the defendant lost all incentive to study.  Academically, he failed almost all subjects with a failing average mark of just over 22 per cent.  In addition to his very poor academic performance, he broke the school rules repeatedly.  As revealed, he was given a number of demerits for smoking, playing truant, fighting, being late for school, disrespecting his teachers and displaying other disruptive behaviour at school. 

    Outside school, he preferred to fool around, mingling with his triad-related peers for various kinds of merriment.  Out of his greediness for making easy money, he even turned to be a drug peddler in the Tsz Wan Shan area from late 2007 onwards.  He simply quitted school in mid-2008 after completing Form 3. 

    After leaving school, the defendant attended a craft course organised by a vocational training council in Kwai Chung, but he did not apply himself to his vocational training.  Feeling bored with himself, he often hankered after fun, seeking adventure and excitement with his delinquent peers.  In the meantime, he started staying out more frequently without bothering about the home discipline and family supervision. 

    Subsequently, he remained jobless and just idled away his time.  Rather, he adhered more closely to his delinquent peers and further led a dissipated life.  In order to procure money to support his living and entertainment expenses, he remained as a drug peddler.  On 25 February 2009, he was arrested by the police for his present offence.”

    You have been detained in Pik Uk Correctional Institution since about 27 February 2009.  Apparently, you have complied with the institutional rules and regulations.  You are described as having displayed superficial remorse for your misdeeds, apparently born by your desire to negotiate a lenient sentence. 

    As Mr Chow says, ultimately, the report does say that you are fit and suitable to be detained in a training centre.  However, in my judgment, it is perfectly clear from that report that you do not fall within the “rare” case in which a training centre order rather than a term of imprisonment is appropriate.  As the court warned you when the court ordered this report to be prepared, the alternative is a substantial sentence of imprisonment. 

    I turn now to the starting point to be taken to determine the sentence to be imposed.  200.95 grammes of ketamine in which you unlawfully trafficked falls in the band of 50 to 300 grammes, which itself falls in the band of 6 to 9 years’ imprisonment set out in the guidelines stipulated in Hii Siew Cheng by the Court of Appeal.  I take a starting point of 7½ years’ imprisonment.

    I turn then to the discount to which you are entitled.  For your immediate admission to the police who arrested you, substantiated by your early plea of guilty, you are entitled to a discount of one-third from the starting point taken for sentence.

Accordingly, the sentence of imprisonment imposed upon you is one of 5 years’ imprisonment.