HKSAR v. Lau Yik Shing and Another

DCCC 962/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 962 OF 2015

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REASONS FOR SENTENCE – D1 only

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INTRODUCTION

1.On 9 March 2016, the first defendant pleaded guilty to, and was accordingly convicted of, the third and fourth charges on the Charge Sheet, both of trafficking in a dangerous drug, preferred against him under section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.  Upon his conviction, the first charge of conspiracy to traffic in a dangerous drug was left on file, the fourth charge having been laid as an alternative charge to it.  The remaining charge, namely, the second charge, did not concern the first defendant; it is unnecessary to deal with it in these proceedings.

FACTS

2.On the afternoon of 1 June 2015, the first and second defendants walked into the rear lane of No.25 Nga Tin Wai Road, Kowloon City, Kowloon.  They stood next to each other inside the rear lane.  The second defendant lowered his head, holding a pile of banknotes in his hands.  Next, they emerged from the rear lane and parted company.  The police intercepted them.  In the second defendant’s right hand was found a plastic bag wrapped in tissue; it contained another plastic bag with 12.7 grammes of a powder containing 10.5 grammes of ketamine in it.  In the first defendant’s left hand were found $1,100 cash.  Under caution, he said he had just received the $1,100 from the man in the rear lane for selling him the bag of “B jai”.  The estimated street value of the ketamine he sold was $1,805.  (Charge 4)

3.On the evening of 1 September 2015, two police officers saw the first defendant loitering outside Ground Floor, Fung Chak House, Choi Wan (2) Estate, Wong Tin Sin.  They intercepted him when he seated himself on a bench, and found in his left armpit under his clothes two plastic bags containing what was subsequently found to be 47.2 grammes of a powder containing 27.2 grammes of ketamine.  Under caution, he admitted delivering the ketamine for a few hundred dollars to Fung Chak House at the instigation of a person called “Ah Sum”.  The estimated street value of the ketamine concerned was $3,508. (Charge 3)

MITIGATION

4.The first defendant, a person of previous good character, was born in September 1997 and is currently 18 years old.  He has received education up to Form Two level and has attempted several part-time jobs since leaving school.  He is not a drug dependant.

5.In his plea in mitigation, Mr Ken Ng appearing for the first defendant submits that the two offences with which this court is concerned were committed just three months apart at which time the first defendant was 17 years old.  Put together, the two offences would, concedes Mr Ng, attract a combined starting point of just below five and a half years’ imprisonment.  He urges this court, in view of the first defendant’s young age and previous clear record, to place greater emphasis on rehabilitation when considering the proper sentence to be imposed on him.  Mr Ng relies on a number of mitigation letters: one from the first defendant himself, one from his father, and two others from serving District Councillors; in summary, they seek to persuade the court that the first defendant enjoys a good relationship with his family members; he looks after his father who does not enjoy good health; and though an under-achiever at school, the first defendant has now a clear vision and a strong determination of following the footsteps of his brother-in-law in becoming a chef.   

6.According to the Training Centre Suitability Report, the first defendant has had an uneventful childhood.  On reaching the secondary level, however, he has been unable to catch up with the regular curriculum and had to repeat Form One once and Form Two twice.  In late 2014, he befriended certain undesirable peers.  Under their influence, he committed the subject offences to make easy money in order to support his playful life-style.  Detention in a training centre is recommended.

CONSIDERATION

7.The Court of Appeal in SJ v Hii Siew Cheng[1] held that the appropriate sentence, after trial, for trafficking in 10 to 50 grammes of ketamine should be four to six years’ imprisonment.  In the present case, the first defendant has in aggregate trafficked in some 37 grammes of ketamine, warranting a prison term in excess of five years.  It is noted however that he is still a young person of 18 and previous good character.  Mr Ng has submitted, frankly, that the mentality of young persons is difficult to comprehend: they may for the strangest of reasons choose to commit serious offences for a few hundred dollars. 

8.Having reviewed the developmental history of the first defendant, the court agrees that many more factors than his biological age have to be taken into account in the assessment of his rehabilitation needs.  Although he has committed the second offence while on bail, material before the court shows that he continues to enjoy a strong family support, and he has devised a clear, definite plan for his future. 

9.As the Court of Appeal has demonstrated in HKSAR v Wong Tsz Hin[2], “[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.” (emphasis supplied)  In sentencing young offenders, particularly one with a previous clear record, the issue of rehabilitation must be given priority; a prison term should, in the view of this court, be avoided wherever possible and must be reserved as the very last option. 

10.Detention at a training centre is never a lenient option: the maximum period of detention is one of three years, and detainees are subject to a period of post-release supervision of three years.  It is the court’s view in the instant case that a Training Centre Order is most suited to the first defendant’s situation; it is conducive to his rehabilitation, and it enhances the chances of his smooth return to the community as a contributing member.   

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

CONCLUSION

12.For each of the offences in the third and fourth charges of which he stands convicted, the first defendant is sentenced to detention at a Training Centre, to be served concurrently.