HKSAR v. Helen Shang

DCCC251/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 251 OF 2010

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

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

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

Reasons for Sentence

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

1.The defendant was found guilty of two charges of trafficking in a dangerous drug upon a guilty plea. 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 her behalf and have regard to sentencing precedents.

2.The facts of the case are simple. The defendant was found sitting at a staircase near her home, which was situated in a public housing block. Upon search a plastic box containing five paper packets of a dangerous drug, as set out in Charge 1, was found in her trousers pocket. Under caution she claimed the drug was for her own consumption. Then upon search at her home a total of 19 plastic bags of dangerous drugs, as set out in Charge 2, was found. Besides, a bag containing 11 empty plastic bags were also found. Under caution she admitted that she had intended to sell the 19 packets of ketamine to earn money.

3.The dangerous drug involved in Charge 1 was a total of 0.18 grammes of a powder containing 0.11 grammes of ketamine, and that involved in Charge 2 was a total of 22.1 grammes of a powder containing 13.52 grammes of ketamine.

4.The defendant is now 19 years of age. She is living with her mother and elder brother. Having finished Form 3 she started to work. She had been employed as a sales lady, and her last employment was one of receptionist in a restaurant. Her parents divorced when she was only 10 years old, and her mother alone brought up her brother and her. Her mother has been working as a security guard, and understandably the single parent does not have an easy task bringing up the two children. She is supportive of the defendant and is present in court today.

5.The defendant turned wayward and was convicted in September 2004 for four charges of robbery and one charge of attempted robbery. At that time she has not yet reached the age of 14 and was put under a probation order. She was soon convicted again in March 2005 for two other robbery offences. She was put on further probation. The last conviction took place almost five years ago and when the defendant was only 14 years of age.

6.The defendant wrote a letter to the court expressing her remorse. Her mother and her employer also wrote. The employer says she performed well during the employment and is satisfied that she is responsible and honest. He was prepared to employ her again.

7.The offence of trafficking in dangerous drug 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 Secretary for Justice 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. If the quantity is less than 1 gramme, then sentencing is a matter of discretion.

8.The defendant is not a first time offender, but this is the first time she is convicted of an offence involving dangerous drugs. She is young but not very young. Learned counsel for the defence asked 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. Whilst rehabilitation for a young offender is always an important consideration, the interest of community as a whole must be given due regard.

9.The Court of Appeal stressed in Attorney General v Suen Yuen Ming [1989] 2 HKLR 403 that it is only in very rare cases that a training centre order would be considered a proper sentence where substantial quantity of dangerous drug are involved. 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 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.”

10.I have also considered cases such as Queen v Lau Tak Ming [1990] 2 HKLR 370, Queen v Yu Kwong Shui CA377/1995, R v Lam Chak Hing [1995] 1 HKCLR 190 and Secretary for Justice v Yau Sze Ho CAAR7/1999. In all these cases the court echoes the same view.

11.Having considered the whole circumstances carefully, bearing in mind the young age of the defendant and everything said on her behalf, and taking into consideration what training centre could offer to young offenders, in my judgment the interest of the community prevails, and the only appropriate sentence to be imposed is an imprisonment term.

12.I was told that the defendant is drug dependent. I was also told that although at the material time the defendant was in possession of a dangerous drug - which is the subject matter of Charge 1 - for the purpose of trafficking, there was a possibility that she might consume part of it. In this connection I have had regard to the case of HKSAR v Wong Suet Hau [2002] 1 HKLRD 69 and HKSAR v Chong Heung Sang CACC221/2009, and is prepared to take two months off the starting point otherwise appropriate. That is applicable to the sentence to be imposed on Charge 1.

13.In deciding the appropriate starting points to be adopted I take into account what the Court of Appeal said in Lau Tak Ming that within the suggested bands the sentencing judge may take into account matters such as the following: the profit which may reasonably be expected to be derived, (the defendant said under caution that she would be able to earn a profit of about $1,500 if she managed to sell all the 19 bags of dangerous drugs); the number of packets; the type of mixture containing the narcotics; the degree of involvement of the offender; her previous history of narcotic offences.

14.Having considered the whole circumstances I adopt the following starting points: Charge 1, 10 months; Charge 2, 4 years. The defendant pleaded guilty and is remorseful. She is entitled to a one-third discount. In all the circumstances I am of the view that this is the extent of discount she is entitled to.

15.Based on the matters aforesaid, I sentence the defendant to 6½ months’ imprisonment for Charge 1 and 32 months’ imprisonment for Charge 2.

16.Having considered the relevant circumstances and taking into account totality, I order the two sentences to run concurrently. The defendant is to serve a total of 32 months’ immediate imprisonment term for the two charges.