HKSAR v. Ho Ka Shing

DCCC629/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 629 OF 2009

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Reasons for Sentence

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1.The Defendant pleaded guilty to a charge of trafficking in dangerous drugs, namely, 245.87 grammes of a powder containing 155.07 grammes of ketamine.

The Fact of the Case

2.Defendant came out from a building in Kowloon City, and his furtive manner aroused the suspicions of the police. The defendant fled and was subsequently subdued. Upon search, a plastic bag containing a resealable plastic bag with nine packets of suspected ketamine was found inside his pocket.

3.Under caution, defendant admitted that the drug was for sale.

4.Inside the defendant’s premises, a can of glucose powder, one plastic spoon, one electronic scale and 37 resealable plastic bags were found inside his living room.

5.In a video record of interview, defendant admitted, inter alia, that:

(1) he was on his way to deliver the drug before he was arrested;

(2) he had worked for “Ah Bong” and received $800 for each transaction, and so far, he had done it two times;

(3) the plastic bag and spoon were used to repack the ketamine into smaller packages;

(4) when he delivered the ketamine, he used some glucose to substitute a portion of the ketamine for his own selling;

(5) he was not a drug addict.

Record

6.The defendant had one previous of possession of dangerous drugs, of which he was sentenced to 18 months’ probation order, but he was in breach of that probation order and therefore he was re-sentenced to rehabilitation centre.

7.In mitigation, I was asked to call for a training centre report in view of his age. He was 17 at the date of pleading guilty. I refused to call for such a report because it was an inappropriate case to consider a training centre order purely because the defendant is a young man.

8.Having heard the mitigation, I called for background report that tells me more about the defendant. He repeated three years of Form 1 from 2004 to 2006. He simply made no effort to improve himself. He drifted from one school to another. His parents have no control over him. He does what he likes. He turns a deaf ear to his parents. He eventually moved away from home and lived with his girlfriend. He made quick money to support himself. He told the probation officer that it was not the first time to commit the present offence, and that was same as what the defendant said in the video record of interview. Each time when he delivered the drugs to someone, he was awarded with $800. He also diluted the drugs with glucose so that he could sell some portion of the drugs to someone else to make more money.

9.Today, I receive two letters, one from the defendant and one from his parents. The defendant regrets for what he has done. His parents still show support to the defendant, and they are in court today to demonstrate this support to him.

10.Now, there are many authorities cited in the Sentencing in Hong Kong that the fact a young man of the defendant’s age was not a mitigating factor for a serious offence which he is now facing. At page 567 of that book:

“Although the rehabilitation of an offender is a matter of importance, this cannot be the sole object of the sentence.”

11.Page 602 and 603 of the book quoted from the case of Lam Hak Hung v R Cr App 724/1972, that:

“It has been said that time and time again that the courts cannot regard it as a matter of mitigation that a person is either very young or very old when he was embarked upon the manufacturing of dangerous drugs or involved himself in trafficking in dangerous drugs. Otherwise, as so often does in fact happen, those who are inveigled into taking part in the manufacture and trafficking will be the lame, the halt, the blind, the young and the old, people who may have some ground for pleading for the mercy of the court if they are in fact arrested.”

12.The case of Ko Fei Tat [2002] 4 HKC 59, the sentencing judge ordered the defendant, who was 16 years of age, to training centre for trafficking in “Ice” of a quantity of 40 grammes and 27 grammes of cannabis and one count of conspiring to supply a further 28 grammes of “Ice.” The Court of Appeal held that mitigating factors such as age and disability which for less serious offence would lead to a discount and little weight in such serious offences. Save in very rare cases, a training centre order for trafficking in substantial quantity of dangerous drugs was not appropriate. The Court of Appeal held that the sentence was not only manifestly inadequate but also wrong in principle.

The Sentence

13.The defendant was convicted of a very serious offence. The quantity involved is 155.07 grammes of ketamine. According to Hiu Siew Cheng CACC126/2007, the quantity involved falls into the sentencing bracket of 6 to 9 years.

14.When I pass sentence on the defendant, I take into account of all the mitigating factors and his guilty plea and the fact that he is now 17 years of age. I take a starting point of 7 years, reduced to 56 months to reflect his guilty plea.