HKSAR v. Lee Ka Ho

DCCC947/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.947 OF 2010

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Reasons for Sentence

1.The defendant faces one charge of trafficking in dangerous drugs, contrary to s.4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134. Particulars of the charge are that, the defendant on 11^th July 2001, at the junction of Fu Yan Street and Yan Shun Lane, Kwun Tong, Kowloon, unlawfully trafficked in a dangerous drug, namely 137.40g of a powder containing 55.06g of Ketamine.

2.The defendant pleaded guilty, admitted to the summary of facts and was duly convicted. This is an excepted offence.

Facts

3.At about 8:38pm on 11^th July, 2010, Police officers PW1 and PW2 on anti-narcotics operation saw the defendant acting furtively at the junction of Fu Yan Street and Yan Shun Lane, Kwun Tong, walking back and forth and looking around nervously.

4.PW1 and 2 stopped and searched the defendant. Upon search, 1 plastic bag containing suspected dangerous drugs (exhibit 1) was found in the defendant’s bag. PW1 arrested and cautioned the defendant. Under caution, the defendant admitted that it was Ketamine that he was delivering for someone else and asked for a chance.

5.In the subsequent video recorded interview, the defendant further admitted that he was delivering the drugs for an unknown person from Diamond Hill to Kwun Tong for a monetary reward.

6.Government chemist confirmed that the drugs found on the defendant contained 137.40g of a powder containing 55.06g of Ketamine. The defendant had HK$61 cash on him at the time of arrest. The estimated street price of the seized drugs is HK$6,497.

Previous convictions

7.The defendant had a clear record.

Mitigation

8.The defendant is now 21, educated up to Form 5 level. After that he continued in vocational training school and then worked in an air-conditioning company earning about $5,500 per month. His parents were divorced before the defendant was born. He is living with his mother in a public housing unit.

9.Concerning this offence, because the defendant had a heavy financial burden, his income is low, so he was thinking of making fast money. He was not thinking of the consequences and so committed the offence. The defendant has a clear record and not a drug addict. He is first delivering the first time and was caught. The defendant is very regretful and his family members and his colleagues are also regretful because they have great expectations of him.

10.As confirmed in the background report, the defendant is a very good son. His mother had serious medical problem and had tumour of the uterus which was removed. The defendant would go to the hospital to take care of his mother even after the permitted visiting time. the defendant’s mother also has problem of unbalanced ear water. Once, his mother feeling very sick, the defendant dialled 999 to call for ambulance sending mother to hospital and taking care of her.

11.The defendant is willing to share the house work with the family doing housework for his mother. When the defendant was off work, he always go back home to have dinner with his mother. His main hobby is playing basketball, he has no other bad hobbies. Even though the defendant has a low income earning about 5,500, he always gives 1,500 to his mother for family expenditure.

12.The defendant’s grandma had clotted blood vessel and had to be sent to the hospital. The defendant also very caring of his grandmother. Today the defendant’s mother and his colleagues at the work place and his friends are in court to support him.

13.The defendant is also a charitable person. In 2006, he had helped Bork Oi Hospital to sell flags. This year, for the Hong Kong Society for Rehabilitation selling flags. You can see that the defendant is a good person, not a usual criminal person.

14.Bundle of certificates and training results submitted.

15.The defendant is remorseful. He said when incident over, he wants to obtain a driving licence so he can more easily return to society.

Sentencing Guidelines

16.Sentencing guidelines for trafficking in Ketamine is set down in the case of Secretary for Justice v Hii Siew Cheng (許守城) [2009] 1 HKLRD 1, CAAR7/2006

“95. We indicate the following tariffs for sentence after trial for traffickers in Ketamine and ecstasy:

…(4) 50 to 300 grammes – 6 to 9 years’ imprisonment;”

Sentence

17.Although the defendant is 21 years old, the offence of trafficking is an excepted offence and as such jail needs not be the last resort when dealing with someone of his age. Furthermore, the age of the defendant does not fall within the group of “extreme youth” and so would not in itself be a mitigating factor. I did out of caution order a background report on the defendant and invited the prosecution to provide me with statistics as to the sentencing of young people of the similar age group in the District Court for reference.

18.The reason I asked the prosecution to prepare those statistics is that, this is the 2^nd case in as many days in this court when a 21 year old is asked to deliver a large quantity of dangerous drugs for a modest monetary reward. If we take into consideration the cases this court had dealt with in the past few months, the number of cases involving relatively young people trafficking in dangerous drugs becomes alarming.

19.Unfortunately, the way that the 2 pie charts are presented prepared by the prosecution do not provide too much information as to be of much help. It is however noted that in relation to young traffickers, in the same period, there were about 50 cases involving over 50g of Ketamine and just 28 involving between 10-50g.

20.In relation to a defendant’s clear record and age, the Court of Appeal in the case of R v Lau Tak-ming & Ors [1990] 2 HKLR 370 at 386E-G, with specific reference to trafficking in heroin, but having equal force when applied to trafficking in 'ice', had this to say:

"It must be borne in mind that these are offences of the utmost gravity which may well result in mitigating factors which, for less serious offences could lead to a discount, having little weight. By this we mean age and disability - though extreme youth may call for special consideration. Drug dealers are notorious for attempting to elicit sympathy from the Courts for their middlemen by the use of the blind, the maimed, the halt, the young and the aged in the carrying out of their nefarious trade."

21.My view is that this passage is equally applicable to cases of young people trafficking in Ketamine. The court must send out the message that young people must not succumb to the temptation of making fast money, thinking that should they be caught their clear record and relatively young age will allow them to be dealt with leniently. This is not going to happen.

22.I was also referred to the case of Secretary for Justice v Yau Si Ho, Application for Review No.7 of 1999 by the prosecution, where it was confirmed that “in cases of trafficking in dangerous drugs of a substantial amount, age, whether young or old, carried little weight in the consideration of sentence.”

23.The narcotics involved in our present case is 55.06g of Ketamine. A strict application of the guidelines in the case of Secretary for Justice v Hii Siew Cheng (許守城) would result in a starting point of slightly over 6 years’ imprisonment.

24.Having considered the circumstances of the case, I will adopt a starting point of 6 years’ imprisonment, reduce it by 6 months in recognition of the previously good character of the defendant and his full cooperation with the Police. I will then grant the defendant the full one-third discount for his guilty plea and sentence him to 44 months’ imprisonment.