HKSAR v. Yu Yat Sing

DCCC1360/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1360 OF 2010

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Reasons for Sentence

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1.Defendant pleads guilty to one count of trafficking in a dangerous drug and another count of failing to surrender to custody without reasonable cause.

2.At about 9.33 am on 12 February 2010, a team of police officers were on mobile patrol in the vicinity of Block 22, Tung Tau Estate, Wong Tai Sin.

3.At that time, a police officer saw the Defendant, who had just alighted from a taxi, throwing something in blue colour into a flower bed near Block 22.  The police officer immediately intercepted the Defendant for enquiry. 

4.Upon search, the police officer found 7 empty transparent re-sealable plastic bags from the Defendant’s left jacket pocket.  In the presence of the Defendant, the police officer conducted a search at the flower bed.  As a result, the police officer found the following items: (i) 1 transparent re-sealable plastic bag containing white powder suspected to be ketamine; and (ii) 2 transparent re-sealable plastic bags containing white powder suspected to be ketamine, wrapped in tissue paper and placed inside a blue “Tempo” pocket tissue packet. 

5.Contents of those 3 transparent re-sealable plastic bags were examined by Government Chemist and found to contain a total of 29.71 grammes of a powder containing 24.84 grammes of ketamine.  The estimated street value of the drug was $3,535 as at the time of this offence.  At all material times, the Defendant had possession of the drug for the purpose of unlawful trafficking.  These are the facts for Charge 1. 

6.On 7 June 2010, the Defendant was brought before a magistrate sitting in Kwun Tong Magistracy in connection with the offence under the Charge 1.  He was then remanded on court bail until 14 June 2010.  On 14 June 2010, the Defendant failed to attend the court as appointed. The Defendant was located by the police on 9 December 2010.  When asked about the reason for his failure to appear in court on 14 June 2010, the Defendant stated that he had overslept on that day.  These are the facts for Charge 2. 

7.The Defendant is now aged 19.  He has previous conviction in relation to 4 charges.  The last conviction was in 2006, to which he was sentenced to the training centre.  At the time of the commission of the offence, he was subject to the recall order by the training centre. 

8.The Defendant has received education up to Form 1 level.  Prior to his arrest, he had only unstable employment, and he was living with his mother, step-father and two younger brothers.  According to the Defendant’s solicitor, the Defendant committed the offence because of the influence by the bad peers. 

9.Trafficking in ketamine is always regarded as a very serious offence, and the appellate court has repeatedly emphasised that young age carries very little weight in favour of the defendant in term of sentence.  Taking into account the gravity of the offence, sentencing the Defendant to a term of imprisonment is the only option open to the court. 

10.According to the established sentencing guideline in the case of the Secretary for Justice v Hii Siew Cheng [2008] 3 HKC at 323, trafficking of ketamine in the region of 10 to 50 grammes would attract a sentence in the region of 4 to 6 years.  As 24.84 grammes of ketamine was involved in the present case, I adopt a starting point of 4½ years' imprisonment. 

11.Giving the Defendant one-third discount for his plea of guilty, the sentence for Charge 1 is reduced to one of 3 years' imprisonment. 

12.In respect of the offence in Charge 2, I have taken into account the authorities referred to me by the prosecution, HKSAR v Lam Kin Chung [2007] 2 HKC at 451.  In that case, the defendant was re-arrested in the street 9 years and 4 months after the breach of the bail condition.  Further in the case of a conviction, the defendant in that particular case might face a reactivation of the suspended sentence.  In that case, in respect of the offence of failing to surrender to custody, the Court of Appeal did not disturb the sentence of 6 months' imprisonment after plea. 

13.I have taken note of this case, but I am of the view that the facts of the present case were not of the most serious nature.  Although the Defendant is subject to a recall order, but I take note of the age of the Defendant and I accept that the failure to surrender was more due to immaturity on his part more than anything else.  Further, I am of the view that, unlike the facts of that case, the period of absconding was relatively short in the present case.    

14.Since the maximum term of imprisonment for such offence is one of 12 months, I adopt a starting point of 3 months’ imprisonment in respect of the present case.  Giving the Defendant one-third discount for his plea of guilty, the sentence is reduced to 2 months' imprisonment, to run consecutive to the sentence in Charge 1, making a total of 3 years and 2 months’ imprisonment.