HKSAR v. Wong Tin Yan

DCCC185/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 185 OF 2010

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Reasons for Sentence

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1.The defendant pleaded guilty to one charge of trafficking in a dangerous drug.

2.In sentencing I have taken into account the whole circumstances of the case including its nature and facts, in particular, the nature and quantity of the dangerous drugs involved, background of the defendant, mitigation made on behalf of him and have regard to sentencing precedents.

3.The facts of the case are simple. The defendant was stopped by police officers in the toilet of a shopping centre. Upon search, two plastic bags containing the dangerous drugs as specified in the charge were found on him. Under caution, he admitted to be delivering the ketamine on behalf of a friend for a reward of $100 upon successful delivery.

4.The dangerous drugs involved were 54.80 grammes of a powder containing 36.85 grammes of ketamine.

5.The defendant is now 17 years of age. He is living with his family which consists also his parents and younger sister. Having finished secondary education in 2009 he had been employed part time in a McDonald Restaurant. His father is a cook and his mother is a housewife. His younger sister is a Form 2 student. He has a clear record. He received a warning under SP’s discretion for an incident of theft back in 2002 as he was 10 years of age. I will totally ignore this in consideration of the sentence.

6.I am told that the defendant was lured by others to commit this offence and he is now very remorseful for failing to stand the greed. The defendant himself is not a drug abuser. His parents are supportive and both attended court today.

7.The offence is a serious one. Ketamine has been shown to be a prevalent drug in Hong Kong. The harm to individuals and the community as a whole is tremendous. According to the guideline in SJ v Hii Siew Cheng [2009] 1 HKLRD 1, the tariff for a conviction after trial of trafficking in 10 to 50 grammes of ketamine is 4 to 6 years’ imprisonment.

8.The defendant is a first time offender. He is young. When he committed the offence, he was still 16 years of age. Learned counsel for the defence asks me to consider a training centre order rather than sending the defendant to prison. In consideration of the matter, I bear in mind the classical principles of sentencing and balance amongst the need for rehabilitation, retribution, deterrence and prevention.

9.Whilst rehabilitation for a young offender is always an important consideration, the interest of community as a whole must be given due regard. The Court of Appeal stressed in AG v Suen Yuet Ming [1989] 2 HKLR 430 that it is only in very rare cases that a training centre order would be considered a proper sentence where substantial quantity of dangerous drugs are involved.

10.As early as in 1972 when the situation of combating dangerous drugs was at the least equally difficult as nowadays, the Court of Appeal said in Lam Hak Hung CA724/1972 that:

“It has been said time and 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 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.”

11.I have also considered cases such as R v Lau Tak Ming [1990] 2 HKLR 370, R v Yiu Kwong Shui CA377/1995, R v Lam Chak Hing [1995] 1 HKCLR 190 and SJ v Yao Si Ho CAAR7/1999. In all of them, the court echoed the same view.

12.Having considered the whole circumstances carefully, bearing in mind the young age of the defendant, that he has a clear record and everything said on his behalf, and taking into consideration what training centre could offer to this young offender, in my judgment, the interest of the community prevails, and the only appropriate sentence to be imposed is an imprisonment term.

13.Having regard to the relevant factors to be considered including those suggested in R v Lau Tak Ming, I am of the view that a starting point of 4½ years is appropriate.

14.The defendant pleaded guilty, he is entitled to a one-third discount. I am satisfied that he is remorseful. As an encouragement to his rehabilitation, I give him a further discount of 3 months.

15.Based on the matters aforesaid, I sentence the defendant to 33 months’ imprisonment.

16.I hope that the defendant having served his sentence will turn over a new leaf.