HKSAR v. Fok Tik Sang

DCCC 766/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 766 OF 2015

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Reasons for Sentence

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Charge and facts

1.The Defendant pleads guilty to trafficking in a dangerous drug.   

2.At about 8:50 pm on 6 May 2015, the police executed a search warrant in a flat in Mong Kok.  The Defendant was sitting on a mattress.  On a folding bed beside him were 5 plastic bags containing ketamine (later found to be a total of 60 grammes of a powder containing 43.4 grammes of ketamine) and an electronic scale.  After arrest and caution, he said that he had planned to deliver the ketamine.  He was the resident and had the key to the flat. 

3.In a subsequent video-recorded interview under caution, he said that he had obtained the ketamine by someone for re-packaging into smaller bags by the electronic scale and delivery of them on several occasions to people in Mong Kok. 

4.The police estimated the street value of the ketamine to be $7,680. 

Mitigation

5.The Defendant is 17 years of age, educated up to F. 3 level.  He worked for 3 months as a waiter, then a delivery worker, a bar-tender, and eventually a trainee in a restaurant.  He did not hold any job for long.  After his parents’ divorce, he lived with his mother, her cohabitant, and their 2 infant children.  His relationship with his mother is merely acceptable.  Some time before arrest, he had moved out from home to live independently in rented units. 

6.He is the typical wayward teenager who under-achieved in secondary school and turned to nocturnal merriments in the company of dubious sets that pulled him all the way down. 

7.As stated in the Training Centre Report I obtain of him, he first got into trouble with the law in a theft case, which resulted in a Care or Protection Order for 15 months on 31 May 2012 (KCJP 150/2012). 

8.On 24 December 2014 he committed 2 offences of unlawful sexual intercourse with a girl under the age of 16.  On 26 August 2015 he was charged with the 2 offences (KT/4111/15).  On 27 August 2015 he pleaded guilty.  On 12 October 2015 he was sentenced to Training Centre. 

9.On 6 May 2015 he committed, and was arrested for, the present offence of drug trafficking.  On 3 July 2015 he failed to answer court bail.  On 28 August 2015 he was sentenced to 4 weeks’ imprisonment for failing to surrender to custody without reasonable cause as appointed (KC/1598/15).  

10.In the Training Centre supervising officer’s view, the Defendant had no adjustment problem.  He managed to conform to the institutional rules and regulations.  A longer period of training time for undoing his delinquent beliefs and values was highly recommended.   He is mentally and physically fit for detention in Training Centre.   

Sentencing considerations

11.Section 109A of the Criminal Procedure Ordinance, Cap. 221, provides as follows:

(1) No court shall sentence a person of or over 16 and under 21 years of age to imprisonment unless the court is of opinion that no other method of dealing with such person is appropriate; and for the purpose of determining whether any other method of dealing with any such person is appropriate the court shall obtain and consider information about the circumstances, and shall take into account any information before the court which is relevant to the character of such person and his physical and mental condition.

(1A) This section shall not apply to a person who has been convicted of any offence which is declared to be an excepted offence by Schedule 3.

12.Drug trafficking is under section 4 of the Dangerous Drugs Ordinance, Cap. 134, which is an excepted offence by Schedule 3. 

13.That means the prison is a parallel option to various CSD institutions.  As laid down in HKSAR v Hii Siew Cheng [2007] 1 HKLRD 1, traffickers of ketamine of 10 – 50 grammes shall be sentenced to 4 – 6 years. 

Sentencing this Defendant

14.In case of imprisonment, I shall take 4 years and 6 months as the starting point. One-third off for his guilty plea, his sentence shall be 3 years.  He has no other effective mitigating factors.  I compare this option with Training Centre.  The prison is not a venue primarily designed for the edification of a teenager since the possibilities of influence by mature criminals are boundless. 

15.Both his strength and weakness stem from his malleability.  I find it in the best interest of himself and the community to place him in a disciplined setting so that he can concentrate his efforts on acquiring a gainful living skill offered by the structured program in Training Centre.  I make an order for Training Centre accordingly.