HKSAR v. Chan Tze Yan

HCCC303/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 303 OF 2008

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Transcript of the Audio Recording
of the Sentence in the above case

COURT:  On 12 December 2008, this defendant appeared before Mr W Lam, Magistrate, at the Eastern Magistrates’ Court.  On that day he was charged with an offence of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

The charge was read in open court and the defendant pleaded guilty to it.  A Summary of Facts in support of the charge was read in open court also, and the defendant confirmed that that Summary of Facts was correct.  Thereafter, the Magistrate committed the defendant to this court for sentence.

I note that on the occasion of the defendant pleading guilty and confirming the Summary of Facts that he was represented by counsel.

On 17 February of this year, the defendant came before me and confirmed his intention to plead guilty, and again the Summary of Facts was read in open court and confirmed by the defendant as being accurate.

The particulars of the charge that the defendant pleaded guilty to alleged that he did, on 17 August 2008, outside 632 Shanghai Street, Mong Kok in Kowloon, traffic in a dangerous drug, namely 247.94 grammes of a mixture containing 198.44 grammes of ketamine.

The Summary of Facts revealed that at about 11.15 in the evening on 17 August 2008, police officers were on patrol in the vicinity of Fife Street and Shanghai Street.  They saw there two males, one of whom was the defendant.  He was carrying a black plastic bag.  Both of the males were apprehended.  Inside the bag the police officers found a powder mixture which they suspected to be ketamine.

Those suspicions proved to be correct.  A subsequent analysis of the powder mixture established that it was 247.95 grammes of a powder containing 198.44 grammes of ketamine.

It was an Admitted Fact that the retail value of that quantity of ketamine was in excess of $31,000.

At the scene of his arrest in Shanghai Street, the defendant told the police officers that the drugs had been given to him by one “Ah Ting”, the person arrested with him, and that he - that is, “Ah Ting” - had paid the defendant $200 to take the drugs.  He was to take the drugs to an address nearby.

The person who was arrested with the defendant and whom the defendant described as “Ah Ting” was also searched, but nothing of any relevance was found on his person.  He, for his part when questioned by the police, denied any knowledge of the presence of the drug in the black plastic bag and the defendant’s assertion to the police officers that he had paid the defendant to deliver them.

The defendant was subsequently interviewed under caution, and he repeated in that interview the substance of what he had told the police officers at the scene of his arrest, namely that the other male, “Ah Ting”, had employed him to deliver the ketamine.

That second male was also originally charged with trafficking in the ketamine, but that charge was subsequently withdrawn after legal advice had been taken.

The defendant is now 16 years of age and was just 15 and several months at the time he committed this offence.

On 6 June of this year, the Court of Appeal announced revised sentencing guidelines for those who traffic in the drugs ketamine and Ecstasy.  Those guidelines came into effect for offences committed after that date.

The defendant committed this offence some two months after the new guidelines came into effect.

Those guidelines provide that for those convicted after trial of trafficking in this amount of ketamine, a sentence close to 8 years’ imprisonment would be appropriate.  A plea of guilty would attract the usual discount of one-third and would result in a sentence in excess of 5 years’ imprisonment.

As long ago as 1990, the Court of Appeal in R v Lau Tak Ming observed as follows:

“It must be borne in mind that these are offences of the utmost gravity which may well result in mitigating factors which, for less serious offences, could lead to a discount having little weight.  By this we mean age and disability, though extreme youth may call for special consideration.”

The defendant is not a person to whom the expression “extreme youth” can properly be applied.  Nevertheless, I must not lose sight of the fact that at the time of the commission of this offence he was not yet 16 years of age, and, as it transpires, not a very sophisticated nor worldly-wise youth.

When this matter was last before me, Mr Ching, on behalf of the defendant, urged me to obtain reports to determine his suitability for a sentence alternative to a term of imprisonment.  I indicated then that whilst I was minded to accede to that request, the defendant needed to appreciate that this was no indication that I would impose either a detention centre or training centre order.

I made those observations because, in the normal course of events, such an order would not be appropriate given the age of the defendant and the seriousness of the offence, and I was mindful at that time of the observations which I have previously referred to in R v Lau Tak Ming.

Mr Ching placed before me and referred to, in the course of his mitigation, a number of testimonials which referred to, in particular, the close and supportive family that the defendant has.  Those testimonials were specific as to the very supportive family background and the relationship of the family and, until recent times, the defendant, with their local church.

One of the matters that was brought to my attention from the material that I have subsequently obtained and the matters placed before me in mitigation is the fact that the defendant had, prior to the commission of this offence, caused his parents to be concerned about some of the peers that he was then mixing with.  It appears that at a time when the family moved to live in To Kwa Wan, the defendant’s parents, and his mother in particular, were very concerned about the nature and circumstances of those with whom he was mixing.  They in part attributed a decline in the defendant’s general behaviour to these associations.

His mother, very much to her credit, had in fact sought the assistance of social workers in that area, and they had met with her and the defendant.  Counselling was provided to him and the family generally, but notwithstanding this, it was not sufficient to deter the defendant from the transgression which brings him now before this court.

What does emerge, however, from the social worker who had seen the defendant prior to the commission of the offence and had seen him subsequently whilst he is in demand, was that she was satisfied that there was clear and obvious and genuine contrition on his part.  That is also borne out by the report from the probation service which has been made available to me.

Again indicative of the levels of support that this defendant has from his family and their immediate circle of friends, I am told that his parents, for their part, have in fact moved their accommodation so that in the fullness of time the defendant will not be mixing with those peers, who are variously described in the reports which are now before me as being dubious.

From the reports that are now before me and the testimonials that have been placed before me and the matters that have been advanced in mitigation on his behalf by Mr Ching, I am satisfied that the defendant has, for the most part, lived a trouble-free life.  It is equally apparent that his family is close and supportive.

It is manifest from all of the material that the defendant has, however, in the year or so prior to the commission of this offence, been the subject of adverse peer pressure.  That cannot condone nor explain his conduct, but it does give some insight into the circumstances surrounding the commission of the offence.

The defendant has never been an excellent scholar.  He has been, in fairness to him, until recent times an average student.  He left school after Form 3 to attend a diploma in vocational studies, which he has not completed.  He is thus far untrained for any vocation when the time comes for him to return to society.

It is accepted by those who have prepared the reports which are now before me that whilst not an excuse for the defendant’s behaviour, the influence of these peer groups that I have earlier referred to is a matter of some moment, and it is not without coincidence that the general decline in his behaviour coincides with the moving of the family to live in To Kwa Wan and his commencing to associate with these people.

In the course of the mitigation it was submitted on the defendant’s behalf that this was the first occasion when he had been engaged in activities of this nature.  There is nothing in the material before me to cause me to doubt that submission.

Sentencing the defendant is not an easy task.  He is considered to be suitable for both detention centre and training centre, and the authors of the report that I have called for suggest that of those two, that the detention centre is a preferable course.  He is likewise not so young that a lengthy term of imprisonment would not be inappropriate.

Given the nature and circumstances of his immediate family and the nature and circumstances of the decline in his behaviour, and the support that the family and he have generally, he is not beyond redemption; that much is apparent.

Taking all things into account and bearing in mind the guidelines that are provided by the Court of Appeal, I am satisfied that it is not appropriate to impose a term of imprisonment in this case.  Of the two realistic alternatives, I consider that the training centre programme is the best option for this defendant; not, I hasten to add, because it is longer, but because at the end of that programme he will hopefully emerge with sufficient skills and maturity to enable him to re-enter society in a productive and meaningful way.

Therefore, the defendant is sentenced to be detained in a training centre.