HKSAR v. Law Kai Ting

DCCC998/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 998 OF 2009

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Reasons for Sentence

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1.The defendant Law Kai-ting pleads guilty before me to one charge of trafficking in a dangerous drug. The defendant admits that on 13 July 2009 at the junction of Dundas Street and Tung Choi Street, Mong Kok, Kowloon, he unlawfully trafficked in a dangerous drug, namely, 11.47 grammes of a solid containing 7.24 grammes of cocaine.

2.The facts admitted by the defendant reveal that at night time on the day in question, a team of police officers, including PC7091 (PW1), were on anti-crime patrol in Mong Kok. At around 8.03 pm PW1 saw the defendant at the junction of Dundas Street and Tung Choi Street. Upon seeing the police officers, the defendant acted furtively and walked in a quick pace. PW1 intercepted the defendant for inquiry.

3.The defendant was then holding a packet of drink tightly in his left hand. Upon search PW1 found two plastic bags inside the packet of drink. Each plastic bag was found to contain 17 small packets of suspected cocaine, P1, and 21 small packets of suspected cocaine, P2, respectively. At this juncture the defendant told PW1 that he was out of money and therefore he helped someone to deliver P1 and P2.

4.PW1 arrested the defendant and administered a caution to him. Under caution the defendant said he was caught this time and he asked for a chance. The admission of the defendant under caution was later post-recorded in a record of interview and acknowledged by the defendant by signing. At a subsequent video recorded interview, the defendant denied having told PW1 that he was delivering anything and he refused to answer any further questions.

5.The Government chemist later examined P1 and P2 and certified that a) P1 contained a total of 5.15 grammes of a solid containing 3.24 grammes of cocaine and, b) P2 contained a total of 6.32 grammes of a solid containing 4 grammes of cocaine.

6.The defendant admits at the material time he was in possession of P1 and P2 for the purpose of trafficking. On 30 September this year, the defendant was convicted of an offence of possession of dangerous drug at Kwun Tong Magistrates Court and he was sentenced to a rehabilitation centre.

7.I am told today that the offence of possession of dangerous drug took place on 4 June this year and the defendant was taken to court on 12 July. In other words, the defendant committed the present case of trafficking in dangerous drug the day after he was taken to court for the possession of dangerous drugs case.

8.Mr Ip, who appears for the defendant submits the pre-sentence reports that were called in KT4508. I have before me the probation officer’s report, the DATC, Detention Centre, Rehabilitation Centre and Training Centre suitability report. The probation officer’s report sets out in detail the background information about this defendant. The report shows that the defendant moved out from his family since October 2007 and reportedly he had no fixed abode. He would only return to his family at the reported address several times a month.

9.For the employment record of the defendant in the past two odd years, the defendant remained generally jobless except working as a waiter and a kitchen assistant occasionally. The probation officer commented that the defendant had no stable employment, however, to support his living and entertainment expenses, the defendant took the family’s utility bills to borrow $30,000 and $11,000 from finance companies in July 2008 and March 2009 respectively. The defendant failed to settle the loans and his family was disturbed by the loan recovery agents till present.

10.The defendant got acquainted with peers with affiliation to triad society, Sun Yee On, during his study at the IVE in 2005 to 2006. Since early 2009, the defendant followed some of his friends and joined another triad society, 14K. Out of financial stringency, the defendant lived on illegal means including loan recovery and drug trafficking since mid 2009.

11.The defendant was an abuser of dangerous drugs. In paragraph 9 of the report, the probation officer has this to say:

“The gathered information revealed that the defendant, being recalcitrant and ignorant to parental supervision exhibited persistent misbehaviour as early as his primary 5 and maintained misconduct throughout his teens, leading a lose life without hard work.  He made loan but not repaid it leaving his family being disturbed by loan recovery agents while he did nothing to help the family.  He was insensible in his choice of peers and kept mingling with triad gangs in the past 4 years.  Being light hearted to dangerous drugs, he has been abusing ketamine and Nimetazepam for at least 3 years.  While he allegedly had never taken cocaine and admittedly having made quick money through drug trafficking since mid 2009, his allegation of the cocaine seized for the present offence for his own consumption was barely credible.”

Paragraph 10:

“Deterred by the severe punishment he anticipated for his other offences, the defendant allegedly have regret for his misdeed.  However, he was evasive during the inquiry about his triad involvement and still told lies to his family about his drug taking.  Without his honest admission to his problems, he would unlikely benefit from probation supervision which required his genuine cooperation.  As such, it is considered that probation supervision is not a viable option for his rehabilitation and it is not recommended.”

12.The report from the Correctional Services Department states that the medical officer was of the view that the defendant was medically unfit for detention in a detention centre because of low body mass index and poor exercise tolerance. The intake officer did not consider the defendant suitable for detention in a detention centre. He found the defendant mentally and physically fit for detention in a rehabilitation centre or a training centre. In fact, the intake officer commented at the second last page of the report:

“The defendant was cooperative in attitude during the interview.  Concerning his present possession of the dangerous drug offence, he pleaded guilty to the charge.  He stated that he had committed the offence out of his fund seeking and under the influence of his undesirable friends.  Little sense of remorse was noted on him in the interview.  He backed leniency for a chance of open supervision from the court because he decide to work and share the financial burden of his family.  All in all, the defendant’s refreshing into his problems was shallow and superficial while his determination to turn over a new leaf was still in doubt.”

In the penultimate paragraph of the report the intake officer says:

“In the interests of his reform, I am of the opinion that the defendant may stand a chance of success in turning a new leaf if given due and adequate social intervention, a period of disciplinary training coupled with statutory supervision would be considered beneficial to his rehabilitation.”

13.Mr Ip, in mitigation, admits that the reports are not favourable and it is also true that the defendant committed the present offence while he was on bail for the possession of dangerous drugs case.

14.For the outstanding case referred to in the report, Mr Ip informs me that the defendant will plead not guilty to that charge.

15.Mr Ip submits that the offence in question took place when the defendant had turned wayward and was affected by some triad friends. Because of all these reasons he got involved in the present case.

16.Mr Ip submits that in the present case the evidence of trafficking comes from the un-cautioned admission made by the defendant at the time of his arrest. After the drugs were found on the defendant the defendant told the police that he was out of money and he therefore helped someone to deliver P1 and P2 and the admission was made without the benefit of a caution. Despite that the defendant chose to plead guilty to the charge.

17.Mr Ip submits that at the time when the defendant committed the present offence, he did not realise the dire consequences of his actions. However, during his time at the Rehabilitation Centre, the defendant became remorseful for what he had done. He had the benefit of receiving counselling and training at the centre. He admits the charge as an indication of his remorse.

18.Mr Ip asks me to consider calling for a progress report to see if the defendant is responding to the training at the Rehabilitation Centre. Mr Ip appreciates that there are tariffs for the offence of this nature, but given the special circumstances in this case in that the defendant is now serving a sentence at the Rehabilitation Centre, he asked me to consider a progress report before sentence.

19.Mr Ip submits that at the end of the day if the court is minded to make a fresh RC Order, the defendant has to start afresh from the date of the new order. The training program at the RC consists of two phases. First of all, the defendant has to be detained at the Rehabilitation Centre for a period of time and then, depending on his performance, he will be arranged to reside at a halfway house.

20.Mr Ip submits that in sentencing this defendant, the court has to balance the interests of the defendant and the interests of the community as a whole. He asks me to consider the age of the defendant. The sentencing reports of the defendant show that he is a person who can benefit from the rehabilitation program of the RC.

21.For the tariff as set down in Lau Tak Ming, if the defendant is to be sentenced to prison, in the light of the quantity of the drugs in question, the defendant would be within the band of sentence of 3 to 5 years. Mr Ip asks me to adopt a starting point at the lower end of the band.

22.Mr Ip further tells me the family members of the defendant are very supportive of the defendant. The father and elder brother of the defendant are in court to show their support.

23.I have considered the nature of the charge, the nature of the drugs in question and the quantity. I have also considered the facts of this case and all the pre-sentencing reports of the defendant.

24.I am aware that the defendant committed the present case while he was on bail for the possession of dangerous drugs case. The possession of dangerous drugs case took place on 4 June 2009, the defendant was arrested on that day, and he was in fact taken to court on 12 July 2009. The defendant committed the present case the day after he was taken to court.

25.As rightly pointed out by Mr Ip, if the defendant is to be sentenced to prison, the quantity of the cocaine in the present case would bring the defendant within the band of sentence of 2 to 5 years.

26.In sentencing the defendant, I have to bear in mind the need of the defendant to undergo rehabilitation, that the sentence should have an adequate element of deterrence, and the sentence I impose should adequately reflect the abhorrence of the community against the heinous crime the defendant had committed, and also the sentence should be an adequate punishment for the crime that the defendant had committed.

27.I share Mr Ip’s view that it is in the personal interests of the defendant that he be sentenced to a Rehabilitation Centre, but the personal interest of the defendant is not the only factor that I should take into account.

28.In my view, the RC or Training Centre Order is inadequate to reflect the seriousness of the offence. A very wrong message will be sent out to other youngsters that if they committed trafficking offences they would be dealt with leniently by the court. Likewise, traffickers would be encouraged to employ youngsters in their trafficking activities.

29.As I said, the sentence I pass should reflect the abhorrence of the community against the heinous crime that the defendant had committed. I do not think a progress report will assist me one way or the other as I think a Training Centre or a Rehabilitation Centre Order would not be appropriate in the present case.

30.The only appropriate sentence in the present case is one of immediate prison term.

31.Applying the tariff as set down in Lau Tak Ming, in my judgment, a starting point of 4 years’ imprisonment would be appropriate. The defendant is entitled to one-third reduction for his plea of guilty.

32.It is said that the defendant pleads guilty to the offence when all that the prosecution has against him was an uncautioned admission made by the defendant at the time of his arrest.

33.I do not agree. Quite apart from the fact that a large quantity of drugs were found on the defendant’s person, the so-called uncautioned admission was volunteered by the defendant after the drugs were found on him.

34.Apart from the guilty plea of the defendant, I can see no other mitigating factors which can further reduce the sentence.

35.The defendant is a young man, he is only 20 years old, but he is not of extreme youth.

36.As for the other matters that Mr Ip urges upon me, for example, that the defendant was influenced by triad friends, he was immature, and the offence took place when he was wayward, these matters, whether taken individually or collectively, do not, in my judgment, amount to mitigating factors.

37.In my judgment, the defendant should be mature enough to appreciate the dire consequences of his acts.

38.For his association with triad members, the Probation Officer’s report shows that in fact the defendant had been mingling with triad members since 2005-2006 when he was studying at IVE.

39.For the reasons given, I sentence the defendant to 32 months' imprisonment. The RC Order is discharged.