HKSAR v. Leung Cheuk Wah

DCCC 1001/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1001 OF 2015

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REASONS FOR SENTENCE

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INTRODUCTION

1.On 4 January 2016, the defendant pleaded guilty to one charge of trafficking in a dangerous drug, laid against him under section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

FACTS

2.On the afternoon of 4 October 2015, the defendant was seen acting in a furtive manner outside a convenience store at Shop No.2 of the Lam Tin MTR Station, Kowloon.  A police officer intercepted him and seized from his left, front trousers’ pocket 26 transparent resealable plastic bags containing what was subsequently found to be a total of 28.4 grammes of a powder containing 18.4 grammes of ketamine with an estimated street value of some $3,600.  The defendant was arrested for the offence of trafficking in a dangerous drug.  Under caution, he said he had wanted to earn extra money.  In a subsequent cautioned interview, he told the police that a man had asked him to collect dangerous drugs (which he knew was ketamine) from a flowerbed at a park; the defendant had intended to sell the ketamine at $200 a packet for which he could earn $70 for each transaction.

MITIGATION

3.The defendant is 19 years old and has had a clear record prior to his current conviction.  He lives with his parents and elder sister.  His parents have to work hard to make ends meet and have left him on his own.  He hangs out in cyber cafés and associates himself with dubious peers.     He repeated his Form Three studies and was unable to complete Form Four.  He left school in April 2013 and managed to finish one module of training under the Youth Pre-employment Training Programme & Youth Work Experience and Training Scheme in October that year.  In the beginning of 2014, he became a computer technician making a monthly salary of $12,000 but was retrenched in mid-2015.  At the time of the commission of the present offence, he was on police bail for a case of claiming to be a member of a triad society.

4.Rehabilitation Officer Mr Liu Wai-pan of the Correctional Services Department considers that delinquent group association lies at the root of the defendant’s problem. Under the influence of bad peers, the defendant has internalized the values of youth gang culture and has led a dissipated life.  Mr Liu concludes that a period of disciplinary training coupled with statutory supervision would be conducive to the defendant moral development and to strengthening his law-abidingness, a Training Centre Order is therefore recommended. On behalf of the defendant, Mr Chase Pun of counsel submits that the defendant is willing to accept a Training Centre Order, and Mr Pun urges the Court to adopt the recommendation of the Rehabilitation Officer.

REASONS FOR SENTENCE

5.The society recognizes that trafficking in a dangerous drug is a serious offence; the statutory maximum sentence is imprisonment for life.  The Court of Appeal in SJ v Hii Siew Cheng[1] has identified the specific dangers the consumption of ketamine would cause to the abusers and to the society.  First, abuse of ketamine can lead to falls from height, drowning, and traffic accidents.  Secondly, it has adverse effects on the cardiovascular, respiratory and central nervous systems of the drug abusers.  Thirdly, it can induce psychological effects resembling schizophrenia, as well as impairment of episodic and semantic memory.  Fourthly, it has long term effects in the form of memory deficit, “flashbacks”, attention dysfunction, decreased sociability, chronic mood elevation, and severe lower urinary tract symptoms. Fifthly, not only has ketamine been demonstrated to be a popular dangerous drug in Hong Kong, but its popularity tends also to polarize itself among drug abusers under 21.  The Court of Appeal has propounded a guideline sentence for trafficking in 10 to 50 grammes of ketamine, namely, four to six years’ imprisonment.

6.In this case, having regard to the quantity of narcotics concerned, a starting point in excess of four years’ imprisonment would be warranted.  However, the defendant is still a young person of 19, he has acknowledged his wrongdoings by co-operating with the police and  pleading guilty to the offence before the court.  The Court of Appeal has reiterated that rehabilitation remained the dominant consideration in sentencing young offenders.[2]

7.In the view of this court, while the biological age of an adult offender would usually provide a fair and necessary indication of the degree of his maturity, there are in the case of a young offender a lot more factors in play.  In the instant case, there does not appear to have been effective parental guidance and control over defendant in his formative years.  He dropped out of school in April 2013 at 17 and has frequented cyber cafés.  Left largely on his own and to his own device, the defendant has under the influence of bad peers adopted the values and attitude of the gang sub-culture.  This brief review of the defendant’s upbringing suggests that the court should not attach full weight to the defendant’s biological age in assessing his need for rehabilitation.

8.When sentencing a young offender, the court should exhaust all viable options before imposing a prison term; the public interests lay heavily in favour of the rehabilitation of the offender.  A Training Centre Order can cater for this need of the offender and of the society.  The Order is never a soft option, for the maximum period of detention is three years.  In addition, upon discharge, the offender must submit himself to supervision for another three years in which period he will be subject to an order of re-call if he breaches the supervision requirements. A Training Centre Order in the circumstances of the present case would sufficiently meet the sentencing criteria of punishment, retribution, and deterrence.

CONCLUSION

9.For the offence of which he stands convicted, the defendant is sentenced to detention at a Training Centre.