HKSAR v. Leung Yiu Fai

DCCC 1117/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1117 OF 2015

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

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

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

REASONS FOR SENTENCE

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

INTRODUCTION

1.On 5 February 2016, the defendant pleaded guilty to and was accordingly convicted of 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 evening of 3 November 2015, a team of police officers on an anti-narcotics mission saw the defendant acting furtively outside “B Substation” on Ground Floor, Hei Lai House, Wah Lai Estate, Lai Chi Kok, Kowloon.  Two police officers intercepted him for enquiry.  They conducted a search on him and, in the pocket of his sweater, found two plastic bags containing what was subsequently determined to be 56.2 grammes of a solid containing 13.7 grammes of ketamine.  The defendant was arrested; he admitted under caution that he delivered the ketamine to Wah Lai Estate for the reward of $1,000.  In a subsequent video recorded interview, he said he came to know a person called “Hin Zai” in Mongkok about three weeks before the day of his arrest, and that at Hin Zai’s instigation, he delivered the ketamine to a customer in Wah Lai Estate; he was to collect $6,000 for Hin Zai.  According to the prosecution, the estimated street value of the ketamine was about $1,739.9. 

MITIGATION

3.Born in May 1996, the defendant is 19 years old and has had a clear record before his present conviction.  He has received education up to Form Five level and works as a warehouse attendant at a daily wage of $400.  He lives with his parents and elder brother and has no triad affiliation.

4.Mr Joseph Li, solicitor appearing for the defendant, submits that the major mitigation in his client’s case comes from his early confession to the police, plus his guilty plea upon arraignment.  Mr Li stresses the defendant’s relative young age and his clear record and that the defendant has the support of his parents.  Mr Li submits forcefully that the defendant is not a young man whose life has gone awry without further hope of parental attention: his father is worried about his future; his mother who suffers from dysthymia is saddened by the defendant’s current situation; and they ask the court to pass a lenient sentence on him.  The disciplinary master of the defendant’s secondary school wrote a letter to court, indicating that the defendant is an easy-going person and has a kind heart, having engaged himself in various voluntary services at school.  Mr Li submits that the narcotic involved in this case was of a small quantity – worth less than $1,800 – and he asks the court to pass as lenient a sentence on the defendant as possible. 

5.According to the Training Centre Suitability Report, the defendant repeated his Form One and Form Four studies.  Since early 2015, he has, on occasions, been abusing ketamine, cannabis, cocaine, and methamphetamine hydrochloride (commonly known as “Ice”).  Rehabilitation Officer Mr SC Poon is of the view that the defendant has grown up in a working-class family and has been well provided for. However, his mother has failed to exercise effective parental supervision on him due to her health problems.  Playful, he has mingled with delinquent peers and has, out of curiosity, tried various dangerous drugs in 2015.  Mr Poon notes that the defendant has attempted to sustain his dissipated way of life by committing the present offence for easy money.  Mr Poon considers the defendant suitable for admission to a training centre.

REASONS FOR SENTENCE

6.In SJ v Hii Siew Cheng[1], the Court of Appeal held that the appropriate sentence after trial for trafficking in 10 to 50 grammes of ketamine should be four to six years’ imprisonment; this represents in any view a stringent sentencing policy, showing the court’s determination to combat trafficking in ketamine.  That determination is well-founded, having regard to the adverse effects – to the person as well as the society as a whole – of ketamine abuse.  Expert evidence adduced before the Court of Appeal in SJ v Hii Siew Cheng[2] shows that ketamine abusers are prone to falling from height, drowning, and traffic accidents; their cardiovascular, respiratory, and central nervous systems can be damaged by such  drug-abuse; they can exhibit schizophrenic behaviour; and they often suffer from memory deficit and impairment, “flashbacks”, attention dysfunction, decreased sociability, chronic mood elevation, and severe lower urinary tract disorder.  In addition, abuse of ketamine is quite prevalent in Hong Kong, particularly among drug abusers under 21.

7.In the present case, in view of the quantity of narcotic concerned, a starting point of four years’ imprisonment would be in order.  However, the defendant is still a young person of 19.  He has, as Mr Li has said, readily admitted his guilt to the police and has pleaded guilty before this court.  He has expressed his remorse to the fullest extent possible.  In addition, he has the support of his family and his former teacher.

8.When dealing with a young offender, the sentencing court is required to give due consideration to the issue of rehabilitation; a prison term should, wherever possible, be reserved as the very last option.  As the Court of Appeal said in HKSAR v Wong Tsz Hin[3], “[i]n view of the applicant’s young age and clear record and for the sake of the community, it is of importance that the applicant should be rehabilitated and a long term imprisonment may not be the best answer for his rehabilitation.”

9.It is the court’s view in the instant case that a Training Centre Order is most conducive to the defendant’s rehabilitation.  It enhances the chances of the defendant’s successful return to the community as a useful, contributing member.   Such a sentence cannot, in any view, be considered as an unduly lenient one: the maximum period of deprivation of liberty at a training centre is one of three years, and the defendant will be subject to a substantial period of post-release supervision.

10.In all the circumstances, a Training Centre Order would, in the view of this court, sufficiently reflect the general sentencing concerns of punishment, retribution and deterrence.

CONCLUSION

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