HKSAR v. Yim Ka Fai

DCCC92/2010

IN THE DISTRICT COURT OF THE

HONG KONGSPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 92 OF 2010

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Reasons for Sentence

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1.The defendant has pleaded guilty to four charges of trafficking in a dangerous drug. The total drug involved amounts to 42.08 grammes of ketamine.

2.The facts show that on 11 November at around 10.15 pm, police officers were conducting an anti-narcotics operation in Nathan Road, Mongkok. They observed the defendant, who was wearing a black jacket and black trousers with a short hair-cut. Subsequently, they saw the defendant having a hand contact with another person, surnamed Kwok.

3.Subsequently, when police officers stopped that person called Kwok, in his trouser pocket was found the white powder, which is the subject matter of the 1st charge.

4.Upon enquiries made, the police were then told that the packet of white powder was taken from the defendant earlier on, and that was an amount of 10.26 grammes of ketamine.

5.Then the police officers continued watching the defendant and saw the defendant go into a male toilet inside Langham Place. Then a person surnamed Ng was seen entering the toilet with the defendant. Both the defendant and Ng entered a cubicle together.

6.Shortly thereafter, this person Ng left the toilet with another man, and police then intercepted them. From the trouser pocket of Ng were found the ketamine, which is the subject matter of the 2nd charge.

7.Further, the police officers then intercepted the defendant in Langham Place. He was searched. Two mobile phones were found on his person with $3,000-over, and the defendant was cautioned for trafficking. The defendant admitted that he had earlier sold those ketamine to the various persons because he wanted to earn some money.

8.When he was brought back to the police station, he was asked to remove his underpants. Inside the underpants, drugs were found, which is the subject matter of the 4th charge.

9.Again under caution, the defendant said he was intending to sell the ketamine for a profit.

10.Subsequently, the defendant was taken to a video interview room. With his consent, a video interview was recorded in which the defendant admitted all four charges of trafficking in dangerous drugs. He said that he wanted to earn quick money in order to resume studying and take a diploma course. He was paid HK$1,000 a day for selling ketamine.

11.The defendant is aged 22, and because Mr Woon had told me that there were special circumstances in his life, and asked for a probation officer’s background report which Mr Woon thought may help me in considering sentence, I acceded to the request and obtained a probation officer’s background report.

12.The defendant unfortunately was born of a mother, a very irresponsible mother, who was in prison for trafficking in dangerous drugs. His father, when the defendant was born, was also in prison, so the defendant actually was put into the care of the Po Leung Kuk and basically grew up in an orphanage.

13.According to the background report, the defendant had always been delinquent and had many problems in the process of growing up.

14.He had been helped a lot, not only by his teachers and social servicers, he had also been helped by the pastor of the Kwun Tong Putonghua Baptist Church, Pastor Poon, who had known the defendant for 10 years.

15.When the defendant was finally of adult age, he moved out into a rented abode.

16.Fortunately for the defendant, he had a friend, a Mr Law, who helped him secure a security job.

17.Unfortunately, the defendant fell in with some dubious peers. Subsequently, the defendant moved out of his last address and lost touch with Mr Law.

18.The security job which the defendant had for a time was at the Citybase Property Management Ltd, and Miss Chan of the Human Resources Department was interviewed.

19.The defendant had sent a resignation letter on 30 October 2009 and did not return to work, and thus he was indebted to the company because he had not served out his notice.

20.According to the defendant, he claimed that he needed money in order to study for a property management course.

21.Unfortunately the defendant, I am inclined to think, fell in with bad accompany and did not keep his job which would have given him an opportunity to study and earn money at the same time.

22.The defendant is now aged 23, and he has no more excuses.

23.He has had a hard life growing up, but there are many people in Hong Kong with very hard lives who have made something of themselves.

24.The defendant cannot rely on that as an excuse whether to gamble or to earn easy money by falling in with the drug trafficking trade.

25.Being in prison will help the defendant. If he is indeed wanting to lead a better life he will have an opportunity in prison to study and to dissociate himself from all his bad friends and even with gambling.

26.Whether it is true or not that the defendant committed this offence to pay off his gambling debts, or whether it was in order to earn money to study, nevertheless, these are very serious offences. The defendant actively participated in selling these drugs.

27.The only mitigation I can see in his case is that he pleaded guilty.

28.I have said many many times that ketamine has become so prevalent in Hong Kong that the courts have a duty to pronounce severe sentences in order that our young people in our society can be protected.

29.The Court of Appeal have recognised this and in the case of Hii Siew Cheng has set down guidelines that for trafficking in between 10 to 50 grammes of ketamine, 4 to 6 years’ imprisonment should be given.

30.In this case, the total amount of ketamine is 42.08 grammes, so that would merit a starting point of 5½ years.

31.Because the defendant had pleaded guilty, he is entitled to one-third discount which would be reduced to 44 months.

32.I will sentence the defendant to 44 months’ imprisonment on each count, to be served concurrently.