HKSAR v. Poon Sheung Yam
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DCCC 686/2010 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 686 OF 2010 -----------------------
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------------------------------- Reasons for Sentence ------------------------------- Charge and facts 1.The Defendant pleads guilty to a charge of trafficking in a dangerous drug, namely 69.19 grammes of a powder containing 43.44 grammes of ketamine. At around 7:35 p.m. on 6 May 2010, the police mounted an anti-dangerous drug operation at Yat Tung Estate, Tung Chung, Lantau Island. They intercepted the Defendant and 3 males. A body search on him yielded 3 plastic bags which contained the drug. The estimated street value was $5,125.92. 2.Under caution, he said that the ketamine was bought from a person called “Ah Ming” at $5,000 in a nightclub in Tsim Sha Tsui in the early morning. He was returning to his home in Yat Tung Estate when the police intercepted him. He would put the ketamine at home. If his friends wanted ketamine, he would sell it to them at $80 per packet to earn some money. He used to consume 4 small packets of ketamine per day. He was employed by DHL at $300 per day. Personal background and mitigation 3.The Defendant was 16 at the time of offence and is now 17. He has a clear record. He came to Hong Kong from Shenzhen 10 years ago. His father is 77 and suffers hypertension. His mother is 45 and a housewife. His elder brother is a construction site worker. 4.He alleges that two-thirds of the drug was for trafficking and one-third was for self-consumption. Whilst the prosecution does not accept this allegation, it does not have any definite stance. 5.The defence has made no request to obtain a training centre report. Sentencing principles Imprisonment of young offender 6.Section 109A of the Criminal Procedure Ordinance, Cap. 221, provides:
7.Trafficking in dangerous drugs is an offence under section 4 of the Dangerous Drugs Ordinance, Cap. 134, which is an excepted offence by Schedule 3. In other words, a prison sentence shall be considered on a par with other options such as training centre. Prison term 8.If a prison term is to be imposed, the sentencing guidelines laid down by the Court of Appeal in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1 shall apply as follows:
9.The total weight of ketamine for trafficking in our present case is between two-thirds or, the prosecution suggests, possibly the entirety of 43.44 grammes. In either scenario, it falls within the range of 4 to 6 years’ imprisonment. Relevance of young age as mitigating factor 10.A.G. v Kong Kin-man [1997] HKLRD 350 is authority for the proposition that age, whether young or old, carries little weight in drug trafficking offences. Prison term or training centre for drug trafficker 11.In A.G. v Suen Yuen Ming [1989] 2 HKLR 403, the respondent had a clear record. He was 17 years and 8 months old when he trafficked in 19.6 grammes of salts of esters of morphine. He was threatened that unless he did so, he would see harm done to his girlfriend and his family’s cooked food stall. The prosecution applied to review the training centre order imposed on him. The Court of Appeal dismissed the application while stressing that it was a rare case. Sentencing this Defendant 12.The Defendant is a seller and consumer of the drug. There is nothing to compare to the facts in Suen Yuen Ming (above). A prison term is inevitable. His young age is a small but still relevant mitigating factor. I take a starting point of 4 ½ years. I reduce it to 3 years because of his plea of guilty. 13.On the face of the facts, there is nothing to contradict the defence allegation that two-thirds, and not more, of the drug was for trafficking. I do not hold any Newton hearing because the prosecution does not even know what its own stance is, which is quite odd and not commendable in the circumstances.
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