HKSAR v. Wong Po Yi

DCCC 859/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 859 OF 2015

----------------------

----------------------

---------------------

Reasons for Sentence

---------------------

1.The defendant has pleaded guilty to one offence of trafficking in a dangerous drug. The quantity of narcotic content in the drug is 44.5 grammes of ketamine.

2.The defendant has admitted the facts of the case.  They are simply stated.

3.The offence occurred on the evening of 11 August 2015, when the defendant was intercepted by police for enquiry and a body search was conducted.  A cigarette box with four resealable plastic bags containing white crystals was found in the defendant’s right front pocket. 

4.Under caution, the defendant said, “Ah Sir, I only want to earn some money for milk powder by helping others to deliver some K-chai,” which is ketamine.

5.There was a subsequent video recorded interview where the defendant gave more details of that.  He delivered the drug for another person to earn money.  He did not know who the person was.  He had received a phone call from that person in the evening, instructing him to pick up a cigarette box in a flower bed and bring it to Ting Fuk House, which he did, where he was arrested.  He had been asked earlier if he would like to earn some quick money.  He said that he did not open the cigarette box and he had not been told what was inside.  However, he found the box heavy, shook it and guessed it was K-chai, and on arrest he has admitted he was delivering that drug.

6.And there is clear evidence that the court can find the defendant was in possession of the ketamine in the cigarette box for the purpose of trafficking.

7.The value of the drug was $7,334. 

8.The defendant’s antecedents show that he is aged now only 17 years old.  He has one previous conviction dated back to January 2014, when for four offences of assault he was placed on probation for 15 months. Despite the defendant’s youth, he has a daughter and he was living with his daughter and the rest of his family at their home in Kwun Tong.  The daughter is now aged 12 months.

9.As far as sentencing is concerned, one is, of course, aware of the defendant’s youth, but he is not sufficiently young for it to qualify as extreme youth, which would permit the court to depart from the normal guideline sentencing approach.

10.The guideline for sentence of this case places the defendant in the range of between 10 to 50 grammes of the drug, which the guideline sentence is between 4 to 6 years’ imprisonment.  On the quantity of the drug alone then, the appropriate point would be towards the upper end of that guideline.

11.The mitigating factors for the defendant are his age (17 years old), his personal circumstances (that is, the fact that he has both a cohabitant and also a young daughter). 

12.As far as mitigation is concerned, Mr Chong for the defendant felt constrained that he could not advance for this defendant because of his instructions that exceptional circumstances exist that would permit the court to depart from the guidelines, particularly for him to argue that one of the forms of training provided by the Correctional Services Department would be appropriate for him, given his age, and it is common ground, that orders such as Training Centre orders for drug-trafficking cases or serious drug-trafficking cases can only be imposed in very rare cases where there are exceptional circumstances. 

13.However, the court itself should examine whether this is one of those very rare cases where there are exceptional circumstances.

14.The circumstances of the offence are not exceptional; in fact, commonplace.

15.The defendant’s personal circumstances as advanced before me do not, on the face of it, show any exceptional circumstances.  They are unfortunate in that the defendant is both young and also is a father, and any sentence of imprisonment will, of course, separate him from his family.

16.But that cannot be seen to be an exceptional circumstance.

17.I consider for these reasons that the defendant will have to be sentenced within the guideline sentencing that is appropriate for trafficking in ketamine.

18.The defendant’s guideline sentence lies between the 4- to 6-year range and normally the determination of where a case lies on that range will be determined largely by the quantity of drug involved. Thereby, the courts maintain consistency in sentencing.

19.However, I do believe that the defendant’s young age and other antecedents such as his family position do permit the court to take a more sophisticated approach to where the starting point for sentence should lie within the guideline and provide some amelioration of the sentence, and it has been said on many occasions that the guidelines are not straightjackets and the court can provide some individualisation of sentencing within the guideline.

20.I believe on a purely mathematical approach the appropriate point for sentencing would be somewhere between 60 to 66 months’ imprisonment.  That is between 5 to 5½ years as a starting point.

21.What I shall do, having regard to factors such as the  defendant’s youth and his family position, is to take a starting point for sentence of 57 months’ imprisonment.

22.The defendant is entitled to a one-third discount from that, which I calculate to be 19 months’ deduction.

23.This will give a final sentence of 38 months’ imprisonment.

24.This is the sentence I will impose.