HKSAR v. Wong Ngan Fat

DCCC954/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 954 OF 2011

----------------------

---------------------

Reasons for Sentence

---------------------

1.Defendant, you were convicted upon your guilty plea of one charge of trafficking in a dangerous drug.

2.In sentencing I take into account the whole circumstances of the case, including its nature and facts, in particular the nature and quantity of the dangerous drug concerned, your background, mitigation put forward on your behalf and information and recommendation contained in the reports.

3.The reports called were training centre report and background report. 

4.The facts you admitted are straightforward and may be set out as follows.

5.In the evening of 4 July 2011 you were stopped by police officers who found you acting furtively in the lift lobby at the 35th floor of a public housing block.

6.Upon search, a plastic bag containing 47.15 grammes of a powder containing 10.98 grammes of ketamine was found in your jeans pocket.  Under caution you admitted to be helping another person to deliver the K Chai for a reward of $100 which you had not yet received.  

7.The value of the ketamine was estimated to be around $4,800. 

8.I was told that you are 16 years of age.  You received education up to Form 3 and were unemployed.  You are living with your parents and two brothers.  You are a first time offender.  I was told that you were a drug addict but by now you had stopped consuming dangerous drug.  It is sad yet again to see a young man engaged in such a serious offence which would cause serious harm to others and the community as a whole.

9.In the case of SJ v Hii Siew Cheng CAAR7/2006, the Court of Appeal indicated a tariff for sentencing for traffickers in such a dangerous drug.  If the quantity of ketamine trafficked is 10 to 50 grammes the sentence to be considered is 4 to 6 years. 

10.I note that you are only 16 years of age and this is the first time you are convicted of any offence.  However, the Court of Appeal has consistently held that for the offence of trafficking in dangerous drugs, unless it is a case of extreme youth, youth generally is not a reason to reduce the sentence.

11.Deterrence is an important factor in sentencing for this nature of offence and the courts should not only have regard to the rehabilitation needs of the defendant.     

12.The following are some of the cases which set out this line of consideration:  R v Lau Tak Ming [1990] 2 HKLR 370, AG v Suen Yuen Ming [1989] 2 HKLR 403 and R v Yiu Kwong Shui, CACC377/1995.  It was said in AG v Yau Wing Hong [1995] 3 HKC 95, that someone older than 15 cannot plead extreme youth. 

13.Having all these sentencing considerations in mind, I called for a TC report and a background report.  Before adjourning the matter for these reports, I have already told you that the purpose of obtaining the reports is to let the court have a better appreciation of you and the circumstances of the case so that the best sentencing option can be selected.

14.I had stressed that the court is not obliged to accept or follow the recommendation that may be set out in the reports.

15.The reports provide detailed information of you and I do not consider it necessary to quote it here.

16.I have taken into account the content of these reports.  Indeed, you were doing well when you were studying in primary school.  However, when you progressed to secondary school education your academic performance began to deteriorate.  You started to mingle with vice associates and started to consume ketamine when you were in Form 2.

17.The CSD assessment officer is of the view that you had only reflected superficially over your past misdeeds.  He said you might have internalised those delinquent beliefs and values explicated by your dubious peers, which could not be undone or unlearnt within a relatively short period of time.  He considered a period of comprehensive disciplinary training coupled with statutory supervision would be beneficial to you as this would help you to develop more insight into your problems and strengthen your law-abiding mindset.  He considered you a suitable candidate for training centre training.

18.Today, in addition to clarifying certain factual information which is inconsistent between the two reports, your counsel told me that you are remorseful.  This, I accept.  He also told me that you are willing to receive training in a training centre and urged me to make a TC Order.  He drew my attention to the case of SJ v Ko Fei Tat CAAR15/2001 in which AG v Kong Kin Man [1997] HKLRD 350 was cited.

19.In Kong’s case, upon an application for review of sentence, the Court of Appeal replaced a Detention Centre Order with a Training Centre Order on the basis that there was no indication of the respondent having embarked on a calculated course of criminal conduct and that it was more a case of a young man momentarily coming under the influence of a more experienced companion.

20.I am prepared to accept that there was a degree of exploitation in the present case.  However, from what I have been told, there are differences between you and the respondent in the quoted case.  Bearing that and your young age in mind, I have given careful consideration as to whether a Training Centre Order is appropriate and desirable in all the circumstances of the case.    

21.In consideration I have taken into account the provision in section 4(1) of the Training Centre Ordinance and what Ribeiro PJ said in Wong Chun Cheong v HKSAR [2001] 4 HKCFAR 12.  Whilst I believe you will benefit from the training in a training centre, having considered the whole circumstances including the information and recommendation set out in the reports, mitigation put forward on your behalf, in my judgment the interests of the community does not require that the rehabilitative approach should give way to a punitive or deterrent sentence in the circumstances of the present case.

22.I am of the view that an imprisonment term is the only appropriate sentence to impose.  Further, I do not consider there are in existence sufficient reasons not to follow the tariff.

23.In R v Lau Tak Ming, the Court of Appeal said that within a suggested band, the court should take into account the following factors:  the profit which may reasonably be expected, the number of packets, the type of mixture containing the narcotic, the degree of involvement of the offender and his previous history of narcotic offences.

24.In all the circumstances I will adopt 4 years as the starting point.  You pleaded guilty and are therefore entitled to a one-third discount.  I am prepared to give you a further discount of 5 months to take into account your young age and as a token to encourage you to reform.

25.Based on the matters aforesaid, I sentence you to 27 months’ imprisonment.