HKSAR v. Yeung Chun

DCCC 97/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 97 OF 2009

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HKSAR

V

Yeung Chun (1^st Defendant)

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Before:  Deputy District Judge Eddie Yip

Date: 25 August 2009 at 12:00noon

Charge: Conspiracy to traffic in a dangerous drug (串謀販運危險藥物)

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Reasons for Sentence

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Charge and facts

1.The 1^st Defendant pleads guilty to a charge of Conspiracy to traffic in a dangerous drug, namely 81.29 grammes of powder containing 58.17 grammes of ketamine in total.  The police laid ambush outside Room 3908, Tat Sin House, Wong Tai Sin Upper Estate, Wong Tai Sin, Kowloon (“the Flat”).  At 5.35 p.m. on 6 November 2008, the 1^st Defendant came out from the Flat.  The police disclosed identity to stop and search him.  A re-sealable transparent plastic bag containing a bag of substance (later analysed to be 10.79 grammes of powder containing 7.75 grammes of ketamine: DD-1).  After caution, he said that he had intended to give DD-1 back to the 2^nd Defendant.

2.The police executed a search warrant on Room 3908 in the presence of the 1^st Defendant.  Inside a drawer of a combination bed, they found a re-sealable plastic bag of substance (later analysed to be 3.81 grammes of powder containing 1.27 grammes of ketamine: DD-2).  Inside another drawer of the bed, a paper box containing two re-sealable plastic bags were found (later analysed to contain 26.71 grammes of powder containing 19.91 grammes of ketamine: DD-3, and 39.98 grammes of powder containing 29.24 grammes of ketamine: DD-4).

3.After further caution, he said he had intended to help the 2^nd Defendant to sell DD-2, DD-3, and DD-4 to make money.  Later on, when the 2^nd Defendant visited the Flat, the 1^st Defendant immediately identified him to the police as the one with whom he had sold ketamine together.   

4.In a subsequent video-recorded cautioned interview, the 1^st Defendant said that:

(1)   Since about 23 October 2008, he and the 2^nd Defendant had sold ketamine to other people.  Normally, an unknown person would call the 2^nd Defendant, who would in turn call him to deliver ketamine to the buyer.  He used to conceal the drug in his pants.  He and the 2^nd Defendant would then share the proceeds of sale.

(2)   At about 3:00 p.m. on 5 November 2008, he and the 2^nd Defendant collected a bag of ketamine in Grand Century Place, Mongkok.  They stored it in the paper box inside the Flat.

(3)   DD-1 to DD-4 were ketamine, which belonged to him and the 2^nd Defendant.

(4)   Upon the 2^nd Defendant’s instructions, he took out DD-1 intending to sell it for $900 on the day of arrest.  However, he failed to get in touch with the buyer.  He took the drug back to the Flat.  He took out DD-1 and DD-2 from the paper box. 

(5)   Before the arrest, they had sold ketamine to other people for one or two times.  He had earned about $1,000.   

Mitigation put forward

5.The 1^st Defendant was 17 at the time of offence and is now 18 years of age.  He has a clear record.  He received education up to F.5 level.  He was a transportation worker for about 3 months.  He then quit for finding it too strenuous.  He mingled with dubious peers who frequented amusement game centres.  His working parents were unable to give him sufficient supervision and guidance.  He has little communication with them.  In an attempt to make easy money, he committed the present offence. 

6.Upon assessing his behaviour and attitude while on remand by the Correctional Services Department, he is deemed suitable for the Training Centre. 

7.His solicitor refers to the case of The Queen v Kong Kin Man AR 13/1996.  The respondent was 17 at the time of offence and 18 when sentenced.  After trial, he was sentenced to the Detention Centre for delivering 5 bags of heroin.  The Court of Appeal noted that the Detention Centre was imposed ultra vires because it was deemed not suitable according to the Detention Centre Report.  On appeal, the Detention Centre Order was substituted by the Training Centre Order, which was recommended by the Training Centre Report.  Whilst emphasizing the exceptional nature of the case, Litton VP spoke of the reason for leniency as follows:

10.    The circumstances of the offence itself does not indicate that the respondent has embarked upon a calculated course of criminal conduct; it was more a case of a young man momentarily coming under the influence of a more experienced companion. 

Sentencing guidelines

Imprisonment of young offender

8.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.

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

9.The Court of Appeal in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1 has laid down sentencing guidelines as follows:

 (1) up to 1 gramme – within the sentencer’s discretion;

(2) over 1 gramme to 10 grammes – 2 to 4 years’ imprisonment;

(3) 10 to 50 grammes – 4 to 6 years’ imprisonment;

(4) 50 to 300 grammes – 6 to 9 years’ imprisonment;

(5) 300 to 600 grammes – 9 to 12 years’ imprisonment;

(6) 600 to 1000 grammes – 12 to 14 years’ imprisonment; and

(7) over 1000 grammes – 14 years upwards. 

10.The total weight of ketamine in our present case, 58.17 grammes, falls within the range of 6 to 9 years’ imprisonment. 

Sentencing the 1^st Defendant

11.The 1^st Defendant co-owned the drug, stored the drug, delivered the drug, and attempted to sell the drug on 2 occasions, one successful but the other unsuccessful, over a period of more than 2 weeks.  These multitudinous roles were not momentary in nature and readily distinguish him from the respondent in Kong Kin Man (above).  Given the quantity and his roles, this is a much more serious case.  I do not find options such as Training Centre appropriate in the present case.  I take a starting point of 6 years’ imprisonment.  I reduce it by one-third because of his guilty plea and clear record.  There are no other mitigating factors.  The sentence is 4 years.