HKSAR v. Mak Yu Pong

DCCC 940/ 2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.940 OF 2008

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Before:  Deputy District Judge Eddie Yip

Date: 19 Jan 2009 at 10:00am

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

Reasons for Sentence

The charge and facts

1.The Defendant pleads guilty to trafficking in a dangerous drug, ketamine, contrary to section 4 of the Dangerous Drugs Ordinance, Cap. 134.  In the evening of 9 July 2008, he was walking on the corridor of the 4th floor of a building.  The police stopped and searched him.  They found a Japanese candy box in the pocket of his trousers.  The box contained 2 packets of ketamine, which was subsequently analysed and weighed.  The first packet contained a mixture of 25.46 grammes containing 20.41 grammes of ketamine.  The second packet contained a mixture of 11.55 grammes containing 9.02 grammes of ketamine.  The street level retail value of the mixture, in total, 37.01 grammes, was $4,700.

2.Under caution he admitted that he had bought the ketamine at $3,000 for resale in a games centre for profit.

The Defendant’s circumstances

3.I have ordered for the Background Report and Training Centre Report.  The Defendant is now 17 years of age.  He was 17 on the date of the offence.  He was bound over for common assault in 2008.  He attained F. 2 education.  He did various unskilled jobs.  His parents have divorced.  He lives with his father.  He has 2 half-sisters, the children of his mother and her cohabitant.

4.As his father was busy at work, he received little supervision and guidance.  He lost interest in studies.  He liked frequenting cyber cafes and video game centres.  He started courtship.  He played truant or stayed out late or overnight to do both.  He carried on his work life with the same attitude.  In order to make money for his pleasure-seeking, he committed the present offence.   

The sentencing principles

Prison or the training centre

5.Section 109A of the Criminal Procedure Ordinance, Cap. 221, provides:

(1) No court shall sentence a person of or over 16 and under 21 years of age to imprisonment unless the court is of opinion that no other method of dealing with such person is appropriate; and for the purpose of determining whether any other method of dealing with any such person is appropriate the court shall obtain and consider information about the circumstances, and shall take into account any information before the court which is relevant to the character of such person and his physical and mental condition.

(1A) This section shall not apply to a person who has been convicted of any offence which is declared to be an excepted offence by Schedule 3.

The offence of trafficking in dangerous drugs is under section 4 of the Dangerous Drugs Ordinance, Cap. 134, an excepted offence by Schedule 3. 

Prison sentence guidelines

6.On 6 June 2008 the Court of Appeal laid down sentencing guidelines for trafficking in ketamine in SJ v Hii Siew Cheng CAAR 7/2006 in place of HKSAR v Lee Tak-kwan [1998] 2 HKLRD 46.  As the present offence took place on 9 July 2008, SJ v Hii Siew Cheng is applicable.  The scale of imprisonment is as follows:

(1)   Up to 1 gramme – discretionary;

(2)   Between 1 and 10 grammes – 2 to 4 years;

(3)   Between 10 and 50 grammes – 4 to 6 years;

(4)   Between 50 and 300 grammes – 6 to 9 years;

(5)   Between 600 and 1,000 grammes – 12 to 14 years;

(6)   Over 1,000 grammes – 14 years or more.   

7.The present case concerns 29.43 grammes of ketamine.  It falls within 4 to 6 years. 

Prison sentence and the offender’s youth

8.In re Applications for Review of Sentences [1972] HKLR 370, Leonard J, at 417 reiterated the view that:

It is true that the personality, youth or personal circumstances of the offender may pale into insignificance because of the magnitude or prevalence of the offence in question.

9.In R v Chung Man-kit [1990] 1 HKC 87, the applicant was between 20 and 21 when he committed 12 robberies, all in the lift and of lone females. A paper cutter was used to intimidate and, in two cases, to cause minor injuries to the victims.  He had a string of previous convictions including common assault, assault occasioning actual bodily harm, possession of dangerous drugs and possession of dangerous drugs for the purpose of unlawful trafficking.  He had been given probation, reformatory school order, Drug Addiction Treatment Centre order, and suspended sentence.  The suspended sentence was still operative when he committed the 12 robberies.  He was sentenced to a concurrent term of 9 years for all charges.  The Court of Appeal reduced it to 7 years.  

10.In dealing with the submission in mitigation that the youth of the applicant had to be given sufficient weight, Silke V-P observed, at para. 9:

On this last submission it was made clear in a number of cases, in particular The Queen v. Kwok Man Hung and Others, Criminal Appeal 17 of 1983 (unreported) and The Queen v. Chan Chi Fai and Others, Criminal Appeals No. 593 and 643 of 1983 (unreported) that where a series of robberies is concerned the youth of those who commit them is not a strong mitigating factor. As was said, and as is apposite to the offences here, in The Queen v. Chan Chi Fai at page 4:

"This type of offence is unfortunately a very common one. The youth of applicants appearing in this Court, and of defendants at trial, is of course of very grave concern. But we feel where there is a multiplicity of offences of this nature that the public interest must be served over

and above the individual interests of the applicants despite their youth."

11.In Secretary for Justice v Ko Fei-tat [2002] 4 HKC 59 which concerned trafficking in dangerous drugs, Stuart-Moore VP said at paras. 23 to 25:

23. We are in no doubt, as this court said in Attorney General v Suen Yuen-ming [1989] 2 HKLR 403, that save in "very rare cases", a training centre order for trafficking in substantial quantities of dangerous drugs should not be imposed. In that case, the exceptional circumstances found by the court to have justified the making of a training centre order included the fact that the respondent had been threatened that if he did not comply with a demand that he should store the drugs in question, his girlfriend would be harmed and the family's cooked food stall business would be disrupted, mitigation which had been accepted by the first instance judge. (It is to be noted that this case was decided before the amendment in 1994 to section 109A to include trafficking in dangerous drugs as an 'excepted' offence.)

24. Exceptional circumstances, which are somewhat elusive, were also found in Attorney-General v Kong Kin-man [1997] HKLRD 350, where the headnote at (2) reads:

"(2) Age, whether youth or old age, carried little weight in drug trafficking offences. It was only in rare cases that detention in a training centre was appropriate on a conviction for drug trafficking (A-G v Suen Yuen Ming [1989] 2 HKLR 403 followed). There was a considerable public interest involved in showing by deterrent sentences that the courts would treat drug trafficking most severely."

25. In that case, where a District Court judge had made a detention centre order for trafficking in a mixture containing just over 13 grammes of heroin, the court found, when substituting a training centre order, that there were no indications of the respondent having embarked on a calculated course of criminal conduct and that it was more a case of a young man "momentarily coming under the influence of a more experienced companion".

The training centre

12.Section 4(1) of the Training Centres Ordinance, Cap. 280, provides

Where a person is convicted of an offence punishable with imprisonment, then if on the day of his conviction he is in the opinion of the court not less than 14 but under 21 years of age, and the court id satisfied that it is in the interest of the community and that having regard to his character and previous conduct and to the circumstances of the offence, it is expedient for his reformation and for the prevention of crime that he should undergo a period of training in a training centre, the court may, in lieu of any other sentence, pass a sentence of detention in a training centre. 

13.Section 4(2) provides:   

A person sentenced to detention shall be detained in a training centre for such period, not extending beyond 3 years from the date of his sentence, as the Commissioner may determine, and shall then be released:

Provided that the Commissioner shall not release any such person before the expiration of 6 months from the date of his sentence, unless required to do so by direction of the Chief Executive.

14.In Wong Chun-cheong v HKSAR (2001) 4 HKCFAR 12, at 24 Riberio PJ summarized the proper approach of a court to the making of a training centre order:

(1) The court should first be satisfied that the threshold requirements are met, ie, that the offence is punishable with imprisonment, and that the offender is aged between 14 and 21.

(2) The court should then consider whether in the case at hand, the interest of the community requires that the rehabilitative approach should give way to a punitive or deterrent sentence.  If so, the training centre option should not, save in exceptional cases, be adopted.

(3) Where the circumstances of the offence are such that a training centre order would be too lenient, the court is entitled to reject that option notwithstanding that the offender would otherwise be regarded as a suitable candidate for training.

(4) Similarly, where the offence committed is minor and would not otherwise call for a custodial sentence, detention in a training centre would, save in exceptional cases, be inappropriate, notwithstanding the offender’s suitability as a candidate for training. 

The sentence I pass

15.On the one hand, if I have to consider a prison term based on the present facts, an offender aged over 21 is likely to face 5 years’ imprisonment as a starting point, to be reduced to 3 years 4 months on a plea of guilty.  The authorities suggest that a young trafficker of dangerous drugs is not likely to get much credit for his age (re Applications for Review of Sentences; R v Chung Man-kit).

16.On the other hand, when considering the suitability of the training centre, regard has to be had to the four factors raised by Ribeiro PJ in Wong Chun-cheong v HKSAR.  Applying them to the present facts, it will be seen that:

(1) The offence is punishable with imprisonment, and that the offender is aged between 14 and 21. 

(2) The interest of the community requires that the rehabilitative approach should not give way to a punitive or deterrent sentence. 

(3) The circumstances of the offence are not such that a training centre order would be too lenient.

(4) The offence committed is not minor and would call for a custodial sentence. 

17.As the present offence is an excepted offence, section 109A of the Criminal Procedure Ordinance, Cap. 221, which provides that a prison term must only be kept as a last resort, is not mandatory.  The court may impose a prison term even if it is not the last resort. 

18.According to the Training Centre Report, he is mentally and physically fit.  From the information available and after a general assessment of his behavior and attitude, he is deemed suitable for detention in a Training Centre.

19.In my view, the Defendant is going down on the fast track.  He still stands a chance if he is guided back in time, and the present instance is no doubt a prime time to do so.  Saving him will also be in the interest of the community.  With an appraisal that a training centre order is a lighter, if not exceptional, option in the present case, I make it the present sentence.

20.He was bound over for common assault in 2008.  It is still operative but I do not propose to make any order on it.