HKSAR v. Lee Siu Hin

DCCC 563/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 563 OF 2016

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REASONS FOR SENTENCE

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1.The Defendant has been convicted on his own plea on one count of trafficking in a dangerous drug, contrary to Sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134, the dangerous drugs being 243 grammes of a powder containing 17.18 grammes of ketamine.

Facts

2.Facts admitted by the Defendant disclose that at about 8.30 p.m. on 19 April, 2016, plainclothes police officers were conducting an anti-narcotics operation in Tsuen Wan. 2 of them noticed the Defendant acting furtively on Kai Hong Close, Tsuen Wan and intercepted him for inquiry. Upon a body search, 1 transparent resealable plastic bag containing the dangerous drugs the subject matter of the charge, namely, 243 grammes of a powder containing 17.18 grammes of ketamine, HK$160 cash and 2 mobile phones were found on the Defendant. The Defendant was arrested and cautioned and under caution he said that he had been instructed by “Ah Keung” in Yuen Long to deliver this packet of ‘K Chai’ to Tsuen Wan, where someone would call him to collect it.  He had to collect HK$26,000 from that person, and he himself would receive HK$2,000.  In a subsequent video record of interview under caution,  the Defendant confirmed that the dangerous drugs in question was ketamine, and re-confirmed what he had said under caution at the time of his arrest.  He had not been paid yet at the time of his arrest.  He had collected the dangerous drugs in Yuen Long between 6 and 7 p.m. on 19 April, 2016 and took a taxi to Tsuen Wan. Of the 2 mobile phones found on him, the Samsung one was registered in his father’s name and used for communication with family and friends, while the Apple iPhone was used for work, and used a prepaid SIM card.  He worked as a vegetable transportation worker earning $14,000 each month and gave $10,000 each month to his parents to repay bank debt, and kept $4,000 for himself.  He lived with his parents and younger sister in Shatin. He was not a drug abuser or drug addict. 

3.The Government Chemist confirmed that the resealable plastic bag contained dangerous drugs, namely, 243 grammes of a powder containing 17.18 grammes of ketamine.

4.His residence in Shatin was also searched but nothing suspicious was found.

5.The estimated street value of the seized dangerous drugs was HK$33,048.

6.I was satisfied beyond all reasonable doubt that the facts admitted supported the charge and accordingly, I convicted the Defendant on the charge that he faced.

7.I have carefully considered all that has been urged by Counsel on behalf of the Defendant. Personal circumstances pale into insignificance for trafficking in dangerous drugs cases.

Previous convictions

8.The Defendant has one previous conviction for theft in 2012, when he was sentenced to the Rehabilitation Centre.

9.The Antecedent Statement was read into the record by the Prosecution.  No issue was taken on its contents by Mr. Kam for the Defendant.  This disclosed that the Defendant was born in Hong Kong and now aged 18 years.  He had been educated to Form 3 in Hong Kong.  He had previously worked as a transportation worker earning $14,000 a month at the time of his arrest. He had no health problems and was not a drugs abuser.  He was single and lived with his parents and younger sister in Shatin.

Mitigation

10.Mr. Kam on behalf of the Defendant submitted the Defendant’s parents were in their 50’s and in Court with the Defendant’s younger sister to show their support for the Defendant.  His father was a construction worker while his mother was a housewife. The Defendant was aged 18 years and worked as a transport worker in a vegetable market in Cheung Sha Wan earning $14,000 a month. He submitted that the Defendant was tempted by the offer of being paid $2,000 to commit the present offence.  He had no previous drugs related offence. He was not a drugs abuser.  He was a filial son. The Defendant had pleaded guilty and was remorseful. He sought leniency for the Defendant. He accepted that the starting point for the quantity of dangerous drugs involved here was 4 to 6 years’ imprisonment.

11.After hearing Counsel in mitigation, I adjourned the matter until today for sentence, and called for Background and Training Centre Reports, which are now before me. I have read them and taken them fully into consideration when deciding sentence.  The contents have been explained by Counsel to the Defendant and he agrees with the contents. I did warn the Defendant that the likely sentence for offences of this nature was an immediate custodial sentence. The Defendant’s greatest mitigation is his plea of guilty, which reflects remorse on his part.

12.Although Counsel did submit in mitigation that the Defendant was not a drugs abuser and he made no submission that some of the drugs would be for the Defendant’s own use, and the Antecedent Statement also disclosed that the Defendant was not a drugs abuser, both the Background Report and the Training Centre Report indicate that the Defendant had occasionally abused ketamine. The Defendant disclosed to the interviewing officer for the Training Centre Report that he had stopped taking ketamine in October 2015.  He started trafficking dangerous drugs from February 2016 to ‘make fast money’ and he was paid $2,000 for each occasion that he trafficked dangerous drugs. The interviewing officer in the report said the Defendant ‘frankly admitted his illicit drug dealing history and attributed the offence to his greediness and adverse peer influence’. The Defendant disclosed to the Probation Officer when interviewed for the Background Report that ‘he first toyed with ketamine under undesirable peer influence at the age of 15 when he stayed at his friend, Ah Bun’s home in Tai Wai in June 2013 but stopped touching on ketamine when recalled to RC in around October 2013. In April 2014, he relapsed to toy with ketamine when he returned Hong Kong from the Mainland and met with Ah Bun.  Without stable employment and income, the Accused began to traffic dangerous drugs to earn money to fulfill his leisure activities with his girlfriend and occasional drug consumption as well buying cigarettes in February 2016. He disclosed that a friend called Ah Kam, aged around 30, introduced him and would call him to get the dangerous drugs in a village house in Yuen Long and bring to the customers. The Accused was able to receive around $1,000 to $4,000 from Ah Bun each time depending on the amount of dangerous drugs.’  In respect of the present offence, he admitted to the Probation Officer that he committed the present offence ‘out of greed to earn quick and easy money without considering the serious legal consequences.’  Mr. Kam has also confirmed that no part of the dangerous drugs herein was for the Defendant’s own use.   I am satisfied beyond all reasonable doubt that no part of the dangerous drugs herein were for the Defendant’s own consumption.

Sentencing Considerations

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

14.Section 109A of the Criminal Procedure Ordinance, Cap. 221, provides that no court shall sentence a person of or over the age of 16 years and under 21 years of age to imprisonment unless the court is of the opinion that no other method of dealing with such person is appropriate.  This provision, however, does not apply to offences of trafficking in dangerous drugs, which are excepted offences. Although the present offence is an excepted offence, I did call for a Training Centre Report and I have considered the recommendation in the report but I do not think Training Centre is appropriate in the circumstances of the Defendant or the offence.

15.I do bear in mind the classical principles of sentencing and balance amongst the need for rehabilitation, retribution, deterrence and prevention. Whilst rehabilitation for a young offender is always an important consideration, and it also serves the interest of the community, the need for punishment of the offender and deterrence of others must be given due regard, and in most circumstances, for offences of this nature, they best serve the interests of the community as a whole. The appeal courts have made clear that save in very rare cases, a training centre order should not be imposed for trafficking in substantial quantities of dangerous drugs. Here, the quantity is substantial. The Defendant would have been fully aware of the gravity of what he was doing and the risks that would be involved if he was apprehended.  The appeal courts have consistently held that for the offence of trafficking in dangerous drugs, unless it is a case of extreme youth, young age carries little weight in mitigation. In the present case, the Defendant was and is not a person of extreme youth.Similarly, the Defendant’s previous record carries very little weight in the offence of trafficking in dangerous drugs. Deterrence is an important factor in sentencing for this nature of offence and the courts should not only have regard to the rehabilitation needs of the Defendant.

16.In the Secretary for Justice v Hii Siew Cheng & Anor. [2009] 1 HKLRD 1, the Court of Appeal laid down the tariffs for trafficking in ketamine. For trafficking 10 to 50 grammes of ketamine, a term of imprisonment of between 4 to 6years is called for.Counsel for the Defendant accepted that this was the appropriate bracket in view of the quantity of ketamine herein.

17.In the instant case, the ketamine involved is 17.18grammes. The court has said time and again that there is a need for deterrence when dealing with offences like trafficking in a dangerous drug, and that young age carries little weight in mitigation. I have taken into account, as I have said, the contents of the reports before me and all that has been urged in mitigation on behalf of the Defendant. 

18.A deterrent sentence is called for as our society needs to get the message that trafficking in a dangerous drug is a very serious offence. I have full sympathy with the Defendant’s family situation. Nonetheless, drug trafficking offences do call for substantial custodial sentences. Although the Training Centre has been recommended, I do not think it I appropriate in the circumstances.  Having considered the quantity of ketamine involved in this case and the Defendant’s personal background, I am minded to adopt a starting point which is at the lowest end of the scale, i.e. 4 years.  In light of the Defendant’s guilty plea, I shall give him the usual discount of one-third. I do not see any other mitigating factors that warrant any further reduction in sentence.

19.The Defendant is sentenced to 32 months’ imprisonment.