HKSAR v. Chung Wai Chung

DCCC 84/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 84 OF 2010

-----------------

-----------------

--------------------------

Reasons for Sentence

--------------------------

Charge and facts

1.The defendant pleads guilty to trafficking in a dangerous drug, ketamine. At about 9:12 p.m. on 8 December 2009, the police were conducting anti-drug operation in the vicinity of the Shatin Town Centre. They noticed the Defendant loitering back and forth in a suspicious manner at a bus stop outside Hilton Plaza. They intercepted him for enquiries. He said he did not want to be searched in public and requested to be searched inside the male toilet. They brought him to a male toilet in Hilton Plaza to search. Inside the hood of his windbreaker was found one plastic bag containing 28 grammes of a powder containing 15.63 grammes of ketamine. After arrest and caution, he said he would earn $500 for bringing the drug to someone.

Mitigation put forward

2.The Defendant was aged 17 years and 11 months at the time of the offence. He is now 18. He had completed F.2 education and then worked as a junior cook in Café de Coral until losing the job a month before the offence. He lived with his parents and an elder brother. Their relationship was harmonious but light. According to his mother’s and his elder brother’s mitigation letters, they were all busy at work and knew little about him. Ms. Cheung was his social worker since August 2007. I reckon that was around the time he committed the offence of possession of offensive weapon. As a result he was sentenced to the Detention Centre. Ms. Cheung was of the view that he had been influenced by undesirable peers.

Sentencing principles

Whether imprisonment is an option

3.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.”

4.The offence of trafficking in dangerous drugs is an excepted offence by Schedule 3. It means that the Court should consider imprisonment not as a last option but on a par with other forms of penalty.

Age of Defendant

5.In re Applications for Review of Sentences [1972] HKLR 370, at 417, Leonard J stated 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.”

6.In the robbery caseof Attorney General v Li Chi-ko [1987] HKLR 1233, the Court of Appeal regarded that only one of the respondents, who was aged 15, could mitigate by claiming young age.

Sentencing guidelines

7.The Court of Appeal in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1 had laid down sentencing guidelines for trafficking in ketamine. Between 10 and 50 grammes, the sentence shall be between 4 and 6 years. The drug in question, 15.63 grammes, would fall within the band of 4 to 6 years’ imprisonment.

Sentencing present Defendant

8.The gravity of the present facts renders imprisonment the only feasible option. I am aware of his age, which is neither young nor old according to the standard of the decided cases. Taking into account his role as a courier, I take 4 years as the starting point. I reduce it by one-third for his plea of guilty. The sentence is 2 years and 8 months.