HKSAR v. Wan Hoi Ho

HCCC 287/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 287 OF 2016

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty at the earliest opportunity in the Magistrate’s Court for the offence of trafficking in a dangerous drug, consisting of 277.5 g of a solid containing 148 g of ketamine. The retail value of the drugs seized was estimated at $34,688. In light of the seriousness of the offence, the defendant was committed to this Court for sentence.

2.The facts giving rise to the offence were that on 26 November 2015, the police mounted an operation at Shing Tin House, Pak Tin Estate, Sham Shui Po, Kowloon.  At about 4:50 pm, they noticed the defendant at the 1^st floor of the staircase of Shing Tin House. They observed him weigh a bag on an electronic scale and then put it inside a recycle bag.  Police intercepted the defendant and seized the recycle bag.  Inside the bag they found 102 plastic bags containing the drugs as particularised in the offence.  They also found at the staircase, a stack of empty plastic bags, an electronic scale and some personal items.

3.Following the arrest and caution of the defendant, he admitted that he was packing the goods for somebody and he was to return them to this person afterwards.

4.In a subsequent interview, the defendant further explained that a friend who he played sports with called Ah Kuen had earlier that day, at about 2 pm, given him the recycle bag containing the electronic scale, the ketamine and the plastic bags.  Ah Kuen instructed him to package the ketamine into small bags of 2.85 g each, and then group five small bags together into a larger bag.  He was promised a reward of $1,000 when he finished the packaging and returned the packaged drugs to Ah Kuen.  He was supposed to meet him three hours later.

5.The defendant is 24 years old.  He was born in Hong Kong and was educated to secondary level 5.  He left school in 2013 and completed a one year sports management diploma.  He was unable to obtain employment in this field and then completed a security and property management course.  Armed with this qualification, he worked as a security guard earning a monthly salary of $12,500.  He does not have a criminal record.  It is also noted that he does not have any triad affiliations. 

6.The defendant admits that he has been taking ketamine for about a year and it was because of his addiction to the drug and financial pressures that he got involved in assisting the friend. 

7.The defendant’s family circumstances are tragic in that he was abandoned by his parents at an early age after they had divorced. He was brought up by his parental aunt and her husband in Sham Shui Po.  His adopted family members have submitted letters on his behalf.  They are from his aunt and his elder female cousin. 

8.His aunt has raised him since his birth and she explains that they have the bond of a mother and son.  She further explains that his parents were drug addicts and their abandonment of him has affected him greatly.  She blames herself for not giving him more support to help him overcome the emotional trauma that he has gone through.  She speaks very fondly of him and describes him as a person who because of his circumstances is introverted and lacks self confidence.  But in every other respect is a good and responsible person who is well liked.  She points out that he gets on well with others, had a stable relationship with his girlfriend and was well regarded at his place of work.  She attributes his involvement in this offence to mixing with the wrong crowd. 

9.His cousin explains that the defendant is a close and loving family member who is deeply remorseful for what he has done and for the pain he has caused the family.  She also describes him as introverted who because of his circumstances lacks confidence and has low self-esteem.  She reveals that he is a wonderfully caring person who is good and respectful to others and that he realises that he has disappointed and saddened his family members, girlfriend and friends.

10.His girlfriend has also submitted a letter and reiterates what has been said by his aunt and cousin.  She explains that they were planning to get married and blames herself for his involvement in this offence because of emphasising their financial situation.  She reveals that the defendant has accepted responsibility for what he has done and is keen to turn over a new leaf.  She talks of her support for him now and in the future. 

11.The defendant submitted a letter acknowledging his wrongdoing and expressing his deep regret for what he did and the impact it has had on his family members, girlfriend and friends.  He displays a positive attitude in seeking to rehabilitate and reform himself. 

12.I have also had submitted to me a letter from a social worker of the Sham Shui Po District Youth Outreaching Social Work Team. The social worker who has known the defendant since April 2012 speaks very highly of him and espouses his virtues as a person. 

13.I am greatly impressed by the comments made about the defendant’s circumstances and character.  He has not been in trouble with the law before and he has tremendous support from his family, girlfriend and friends.  It may be because of financial reasons or of his drug addiction and mixing with the wrong company that he got involved in this offence.  I accept it was completely out of character and that he is fundamentally a good person who shows a lot of promise.  It makes his involvement in this crime all the more tragic. 

14.The sentencing tariffs are there to assist a court in determining a just and appropriate form of punishment for the offender and the offence.  Although it is still incumbent on a court to take all matters into account and to give an individualised sentence in a particular case. 

15.I have decided that given the relatively young age of the defendant and the potential future promise that I believe he shows, I will sentence him as leniently as I possibly can.  I considered the range of sentencing options available as punishment for the crime committed by the defendant but because of the seriousness of the offence and the relevant sentencing guideline cases, a term of imprisonment is warranted given all the circumstances of the present case.  It is a fundamental principle that the sentence to be imposed must sufficiently reflect the gravity of the offence. See Secretary for Justice v Lau Shing Kit [2012] 5 HKLRD 297.  However, a sentencing court in evaluating and determining a just and appropriate sentence should consider all relevant circumstances relating to the offence and to the offender.

16.The sentencing regime for trafficking in ketamine is governed by guidelines laid down in S for J v Hii Siew Cheng [2009] 1 HKLRD 1.  The quantity of ketamine involved is 148 g and this falls within the tariff band of 50 to 300 g for which a guideline sentence of 6 to 9 years’ imprisonment is suggested.  As I have explained, I will attempt to be as lenient as possible because of the defendant’s relatively young age and circumstances, his previous good character, and the future promise that he shows as a member of the community.  He promptly acknowledged his wrongdoing and accepted that he was deserving of punishment for what he had done.  He has displayed a positive attitude in the time that he has been in custody and he is keen to rehabilitate and reform himself while serving his prison sentence.  These are matters that should not be overlooked when individualising the sentence to be imposed.  It is with the sentencing tariff in mind that a sentence is imposed taking account of the relevant circumstances of the offence and the offender in order to serve the public interest by imposing a punishment that will also rehabilitate and reform the defendant so that upon his release from prison he will hopefully join the community as a law abiding and constructive member of it. 

17.I will impose a starting point of 6 years and 6 months’ imprisonment which is considerably less than what would normally be imposed but I do so for the reasons I have just explained. 

18.The defendant has pleaded guilty for which he is entitled to a one-third discount and accordingly he is sentenced to 4 years and 4 months’ imprisonment.

Mr Bobby Cheung, SPP of Department of Justice, for HKSAR

Mr Joseph Lam, instructed by Director of Legal Aid, for the defendant