HKSAR V Lo Ming Wai

DCCC 1139/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1139 OF 2008

____________

___________

Coram: Deputy District Judge Dufton in Court

Date of Plea: 6 January 2009

Date of Sentence: 20 January 2009

Charge: Trafficking in a dangerous drug(販運危險藥物)

REASONS FOR SENTENCE

1.The defendant pleads guilty to one charge of trafficking in 52.47 grammes of a powder containing 41.84 grammes of ketamine, contrary to section 4 of the Dangerous Drugs Ordinance, Chapter 134. 

2.In summary at about 23.00 hours on the 15th October 2008 the police stopped the defendant who was acting in a suspicious manner outside a public toilet in Fanling.  Upon search four plastic bags containing the ketamine were found in the defendant’s left trouser pocket. Under caution the defendant admitted that he was delivering the ketamine to earn a reward of $600. 

3.In June last year the Court of Appeal in the Secretary for Justice v HII Siew-cheng [2008] 3 HKC 325 laid down new guidelines for trafficking in ketamine.  Where the narcotic content is between 10 and 50 grammes sentence after trial falls within the range of 4-6 years imprisonment.  41.84 grammes of ketamine place this towards the upper end of that range.

4.The defendant is 17 and a first offender.  Section 109A of the Criminal Procedure Ordinance, Chapter 221 provides no court shall sentence a person of or over 16 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 an excepted offence.  Although trafficking in dangerous drugs is an excepted offence I nevertheless called for a training centre report to provide me with background information on the defendant. 

5.The report details a marked deterioration in the defendant’s studies after being promoted to secondary school when he began to associate with undesirable peers, including triad peers.  On the plus side the defendant did participate in community work whilst in form 4, for which he received a “Services Reward” from his school principal.  After poor results in the 2008 HKCEE the defendant quit school and once again mixed with triad peers, who persuaded him to deliver the drugs.

6.In passing sentence I have carefully considered everything said by Mr Yiu together with the letters written on the defendant’s behalf asking for leniency.  I take into account the defendant is still young, although not of extreme youth and has a clear record.  I am asked to sentence the defendant to detention in a training centre. 

7.The defendant was warned at the time of adjourning sentence that even if training centre was recommended this did not mean I was going to sentence the defendant to detention in a training centre.  As I explained at the time 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 (see Secretary for Justice v KO Fei-tat [2002] 4 HKC 59). 

8.I am satisfied this is not one of those very rare cases.  Although the defendant is young he was willing to deliver dangerous drugs having approached triad peers asking them how he could earn money.  For the reasons given in the Secretary for Justice v HII Siew-cheng I am satisfied a deterrent sentence is required.

9.Taking all these matters into account I am satisfied the proper starting point after trial for 41.84 grammes of ketamine is five years and six months imprisonment.  Giving the defendant full credit for his plea of guilty he is sentenced to three years and eight months imprisonment.