HKSAR v. Yu King Pui

DCCC 884/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 884 OF 2015

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Reasons for Sentence

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1.The defendant pleaded guilty to one charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134. Particulars are that he on 24^th July 2015 unlawfully trafficked in 252g of a powder containing 94.3g of ketamine.

Summary of facts

2.Police officers on anti-narcotics patrol intercepted the defendant, who was acting furtively and trying to avoid the officers, at about 7:57pm on the offence date.

3.One plastic packet containing some powder was found in the paper bag that the defendant was holding. The defendant was arrested for trafficking in dangerous drugs. Under caution, he said that he was told to deliver the “K chai” for $500. The defendant said he knew it was wrong and that he was sorry. The defendant had a mobile phone and $95 cash on him.

4.The powder was later confirmed to contain 94.3g of ketamine, with a street value of around $32,881.30.

5.In the subsequent video recorded interview, the defendant claimed that he was approached by a male ‘Do Chai’ in Mongkok about 3 weeks ago who asked if he needed money. The defendant said yes and left him his mobile number.

6.Do Chai called the defendant at around 6pm on the day of the defendant’s arrest, telling him to take a taxi to Tuen Mun to meet someone. The defendant did so and was met by an unknown male there who paid his taxi fare. The man handed over the paper bag in question and told the defendant to take it to a rubbish bin in the playground at On Hing Street in Yuen Long. The defendant was told that he would be paid $500 afterwards. The defendant did ask the man what was inside the bag and was told that it was ‘K chai’. The defendant knew that ‘K chai’ is a dangerous drug.

7.The defendant took another taxi to On Hing Street, arriving at about 8pm. The Police intercepted him when he was just about to make the delivery.

8.The defendant claimed in the interview that he was not addicted to ketamine.

Previous record

9.The defendant has one previous conviction, which was for the offence of theft in September 2013. He was sentenced to 120 hours of Community Service.

Mitigation

10.The defendant is 19 years and 7 months old. He was born in Hong Kong and educated up to Form Two level. He is single and was working as a waiter at the time of the commission of the present offence.

11.The defendant’s father and elder sister, Ms. Ho, each wrote in mitigation on his behalf. I am told that the defendant grew up in a single parent family. Since the defendant’s mother worked long hours, she did not have time to properly look after the defendant, causing him to be led astray by others.

12.The defendant’s sister explained how she was the person who had to take up the responsibility of looking after the defendant when they were both quite young. She blames herself for not giving the defendant proper guidance. She believes the defendant sought a sense of existence (「存在感」), which led him to be acquainted with the wrong type of people and eventually exploited by them. Ms. Ho describes how the defendant was crying each time she went to visit him, and how he regrets being so stupid. The worst part is how the defendant fears that he may not be able to look after his father, who suffers from cancer, as a result of him being in jail.

Sentence

13.The maximum sentence for trafficking in dangerous drugs on conviction on indictment is that of a fine of $5 million and imprisonment for life.

14.Sentencing guidelines for trafficking in ketamine is found in the case of Secretary for Justice v Hii Siew Cheng (許守城), CAAR 7/2006. The tariff sentence for trafficking in ketamine of a quantity between 50 to 300 grammes is that of 6 to 9 years’ imprisonment.

15.Trafficking in dangerous drugs is an excepted offence and as such s.109A of the Criminal Procedure Ordinance, Cap.221 does not apply and imprisonment therefore need not be the last resort when sentencing the defendant, who is 19 years old.

16.I find that the defendant’s age cannot be categorized as ‘extreme youth’ and will not give it much weight in mitigation. In the case of Attorney-General v Kong Kin-man [1997] HKLRD 350, it was stated that:

“(2) Age, whether youth or old age, carried little weight in drug trafficking offences. It was only in rare cases that detention in a training centre was appropriate on a conviction for drug trafficking (A-G v Suen Yuen Ming [1989] 2 HKLR 403 followed). There was a considerable public interest involved in showing by deterrent sentences that the courts would treat drug trafficking most severely.”

17.At the time of the commission of the present offence, the defendant had already experienced first hand the operation of the legal system. He was fully aware of the serious consequences of breaking the law. When he accepted the invitation to deliver the drugs, he must have known clearly what he was getting into and the possible consequences. He has no one but himself to blame for the commission of the offence.

18.Nevertheless, although the defendant’s age is not a strong mitigating factor, it is still a minor one. I note also the support for the defendant from his father and elder sister, but the court must send a proper message to deter young people from dealing with dangerous drugs. An immediate custodial sentence within the sentencing guidelines is the only proper way to deal with the defendant.

19.For the 94.3g of ketamine content, I adopt a starting point of 75 months’ imprisonment.

20.Given the defendant’s light record, his age and family support, I will grant him a discount of 3 months.

21.I find that there are no aggravating factors in the circumstances surrounding the defendant’s commission of the present offence.

22.Applying a one-third discount to the defendant’s sentence for his guilty plea, the final sentence is 4 years’ imprisonment.