HKSAR v. Tam Chun Hei

DCCC936/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 936 OF 2011

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Reasons for Sentence

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The Charge and the Facts

1.The Defendant pleaded guilty to one charge of “trafficking in a dangerous drug”, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

2.Briefly, the facts were that during an anti-narcotics operation conducted by the Police in the vicinity of Second Street, Western, the Defendant was found acting furtively and was therefore stopped for a search. As a result, the drug particularized in the charge, that is, a total of 430 grammes of a powder containing 120 grammes of ketamine, was found inside a paper bag held by the Defendant. The estimated street value of the drug was HK$48,000.

3.When being questioned, the Defendant admitted that, as he was in need of money, he helped delivering the drug to a public toilet for a reward of HK$1,000.

Mitigation

4.The Defendant is now 17 years of age and has a clear record. He has a kidney problem and received two operations when he was 7 and 12 respectively. He now has one of his kidneys completely removed and requires regular medication and follow-up.

5.The Defendant was educated up to Form 3 level and quitted school in 2008. While in school, the Defendant had received a number of commendations for his good conduct and his participation in extra-curricular activities. Upon ceasing studies, the Defendant started to work in a hair salon, earning about HK$7,000 per month, out of which he contributed HK$4,000 to his mother as family expenses. However, he later developed dermatitis and quitted the job. At the time of the offence, the Defendant was unemployed.

6.Prior to his arrest, the Defendant was living with his mother and elder sister. His father, who had been working in the Mainland, was living apart. The Defendant’s mother disclosed in her letter to the court that she divorced her husband in 2008 and she is the only one looking after the Defendant.

7.In mitigation, it was said that the Defendant was not the master-mind. He was merely asked by his classmate to deliver the drug. He initially refused but upon receiving repeated requests, he finally succumbed and agreed to do so for a reward. On the day of the offence, he was with his girl-friend, his classmate rang him up and he then took delivery of the drug. Mr. Ip for the Defendant said that the Defendant committed the offence out of greed and foolishness. He is now remorseful and is prepared to accept his responsibility.

Sentencing Considerations

8.The Defendant is only aged 17 and, generally, the court should be slow in sending such a young person to prison. However, the offence to which the Defendant pleaded guilty is an excepted offence in Schedule 3 of the Criminal Procedure Ordinance, Cap. 221, and therefore section 109A, which requires the court to consider other methods of dealing with young offenders, is not applicable.

9.The Court has said time and again that there is a need for deterrence when dealing with offences like trafficking in a dangerous drug and that age carries little weight in mitigation.

10.Therefore, in a case such as the present where a large quantity of ketamine was involved, the Defendant’s young age and clear record cannot be of much assistance to him in mitigating his sentence.

11.It is certainly unpleasant to sentence a young man to imprisonment. However, if a lenient approach were to be adopted, it would only send out the wrong message to the community and would encourage the drug traffickers to recruit youngsters as their couriers. In the end, the young would be abused and the traffickers would obtain substantial profits from this heinous crime.

12.The guidelines for trafficking in ketamine were laid down in SJ v Hii Siew Cheng ＆ Another [2009] 1 HKLRD 1. For trafficking in 50 to 300 grammes of ketamine, the term of imprisonment should be between 6 and 9 years. In the present case, for the 120 grammes of ketamine involved and taking into account the relevant facts, I consider a starting point of 81 months to be appropriate.

Sentencing the Defendant

13.The Defendant pleaded guilty and he would receive a one-third reduction in sentence for his plea. In view of the Defendant’s clear record and background, I am going to give him a further reduction of 4 months.

14.81 months reduced by one-third is 54 months imprisonment. A further reduction of 4 months would mean a term of 50 months’ imprisonment. This is the sentence I impose on the Defendant in respect of this charge and I so order.