HKSAR v. Leung Pak Tim

DCCC 905/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 905 OF 2016

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REASONS FOR SENTENCE

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1.The defendant (male) (aged 20) appeared before me this afternoon and pleaded guilty to a single charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.The subject matter of the dangerous drugs is 244 grammes of a solid containing 44.4 grammes of ketamine.

3.According to the amended Summary of Facts which has been admitted by the defendant, at about 6:37 pm on 25 July 2016, a team of police officers were carrying out operation in Sha Tin Centre when they spotted the defendant holding a white plastic bag in his left hand and appearing at the podium situated on the 3rd floor of the Sha Tin Centre.  At that time, the defendant was seen to keep walking towards different directions and turning his head round and stopping intermittently.  As a result, the team of police officers approached the defendant and intercepted him outside Shop No 44 of the podium for further investigation.

4.As a result of the search conducted on the person of the defendant, inside the plastic bag carried by him, a transparent resealable plastic bag containing the suspected dangerous drugs was found.

5.The defendant was then immediately arrested by the police officers and cautioned for “Trafficking in dangerous drugs”, under which he stated that he was in need of money and was delivering the dangerous drugs to others out of greed and he asked for a chance.

6.The defendant had with him at the time of the offence HK$80 in cash and one mobile phone.

7.In a subsequent video cautioned interview, the defendant further elaborated that he met a male at about 12 noon outside the Kwun Tong MTR Station on the day in question.  The male then asked him to pick up the plastic bag containing the dangerous drugs near a traffic cone outside Sha Tin Centre and told him to deliver the dangerous drugs to others. He was promised to be given a reward of $500 afterwards.  The defendant further told the police that he knew the dangerous drugs that he was delivering was ketamine.  At the time when he was arrested, he was still waiting for the call from the male and he had not yet to receive the $500 reward from that male.

8.The suspected dangerous drugs, were sent to the Government Chemist for further examination.  It was confirmed that they were ketamine.  The estimated street value of the ketamine is HK$58,072.

The criminal record and the personal background of the defendant

9.The defendant has a clear criminal record.  He lives together with his father and a younger brother in a public housing estate in Tseung Kwan O.  His parents divorced a few years ago and the mother had moved away and lost contact with the defendant since then.  The defendant had attained a Form 3 education level.  After schooling, he had been trying to work as a transportation worker and restaurant waiter and shortly at the time before he was arrested, he worked as a temporary casual actor, earning about $250 per day.

10.In mitigation, Mr Alex Leung, the solicitor assigned by the Director of Legal Aid, told the court that the defendant was running into financial difficulty, as his employment was unstable and he only had about 10 days’ work per month.  Also, the agency which offered him the temporary job had delayed his payment of wages for two and three months. Mr Leung also informed the court that the father of the defendant is now aged 57 but he had stopped working for a few years already and is now living on the public assistance by the Social Welfare Department.  The younger brother is a Form 5 student.  Mr Leung also told the court that the defendant had to stop schooling when he was in Form 3 because he was bullied at the school.  He was affected by the separation or divorce of the parents.  All in all, Mr Leung urged the court to consider the fact that this is only an offence which was committed by the defendant out of momentary greed and he was still young, although he conceded that he is not extremely young. Mr Leung acknowledged that the offence is one of excepted offence and one which invariably carries an immediate custodial sentence.  The defendant also accepted the fact that he should be punished by a custodial sentence and did not seek to ask for any non‑custodial sentence or call for any pre‑sentencing report.

Sentencing considerations

11.Drug trafficking is, of course, a very serious offence.  It is also an evil business and the courts have repeatedly emphasised that whoever carries on such an evil business, irrespective of his or her background or the circumstances in which the offences are committed, can expect no mercy, otherwise the aged, the young or the crippled will be encouraged to take part.

12.In the case SJ v Chau Tsz Tim CAAR 4/2014 and SJ v Ho Wan Chiu CAAR 5/2014, the Court of Appeal has said that although young age is very often a mitigating factor, when the court is dealing with serious drug trafficking offences, public interest requires that the deterrence of other potential offenders must take precedence over the rehabilitation of the particular offender before it.  It is therefore not in the interest of the community to sentence even young offenders of serious drug trafficking offences to the training centre.

13.The defendant in the present case has very sensibly and, in my view, properly accepted that he should be punished by an immediate custodial sentence.

14.The present case is concerning the dangerous drugs of ketamine.  The Court of Appeal has already laid down a tariff guideline for trafficking in ketamine in the case of SJ v Hii Siew Cheng [2008] 3 HKC 323.  For trafficking of ketamine between a quantity of 10 to 50 grammes, the starting point should be one of 4 to 6 years’ imprisonment.

15.The present case involved, as it were, about 44 grammes of ketamine.  I therefore consider that a starting point of 5½ years, and that is 66 months, should be appropriate.

16.Although I have said that young age should pale into insignificance when I considered whether to sentence the defendant into a training centre, when it comes to a custodial sentence, in view of the relatively young age of the defendant and his clear record, I consider that I can still somehow lower the starting point by adopting 63 months in this case.

17.The defendant pleaded guilty, which is, in my view, the only effective mitigating factor.  The defence has, in the course of mitigation, also referred me to a number of letters written by the defendant’s family members and friends and also the Legislative Councillor.  I have already read the letters.  I am not going to repeat the content of those letters. Suffice it to say that the authors of the letters did urge me to give a chance to this young man, saying that he just committed the offence because he was lost.  I hope the defendant can really learn a good lesson from the present offence and rehabilitate after serving the sentence and turn over a new leaf and become a useful citizen of the community in the future.

18.After giving the defendant the usual one‑third discount, which is 21 months, the sentence will come down to 42 months’ imprisonment, which is 3½ years, and that is the sentence I am going to impose for this defendant.