HKSAR v. Lau Ka Ming and Another

DCCC 1351/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1351 OF 2011

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REASONS FOR SENTENCE

D1 pleaded guilty to a charge of "Possession of a dangerous drug" (Charge 2) and D2 pleaded guilty to a charge of "Trafficking in a dangerous drug (Charge 1). The dangerous drug involved in both charges is ketamine.

Summary of Facts

2.About 5:50 pm on 6 October 2011, CO 94134 (PW1) and      CO 7185 (PW2) stopped D1 and D2 at Soy Street (near lamppost No.AA5165), Mongkok for investigation.

Charge 1 (against D2)

3.Upon search at the scene, 2 transparent ziplock plastic bags, each containing 5 packets of powder (later found to be a total 25.52 grammes of a powder containing 5.17 grammes of ketamine), were found in the turn-ups of D2's jeans.  PW2 arrested D2.  Under caution, D2 admitted that the powder found on him was "K Chai", which he and D1 would deliver to others.

4.D2 was brought back to the Customs Headquarters. Upon a further search, 2 transparent ziplock plastic bags, each containing 5 packets of powder (later found to be a total 25.55 grammes of a powder containing 3.86 grammes of ketamine), were found inside D2's socks.  He was interviewed under caution, but remained silent.

Charge 2 (against D1)

5.D1 was also searched at the scene, upon which 2 transparent ziplock plastic bags, respectively containing 10 packets and 2 packets of powder, were found at the back of his underpants.  The 12 packets were later found to contain a total of 17.64 grammes of a powder containing 3.86 grammes of ketamine.  PW1 arrested D1.  Under caution, D1 admitted that the powder found on him was "K Chai", and that they were for his own consumption.

Mitigation & Sentence

D1

6.D1 is now 17 years old and has a clear record, except an SP Discretion for "Arson" in 2007.  His natural parents were divorced when he was 6 to 7 years old.  D1 was raised by his father and paternal grandmother.  In February 2010, he moved to stay with his mother after having an argument with his father.  At the time of the offence, D1 was unemployed.

7.Due to his age and clear record, I called for a series of pre-sentence reports.  The reports indicate that D1 is not a drug dependant and that he is mentally and physically fit for Detention Centre, Rehabilitation Centre and Training Centre.  The Commissioner finds him more suitable for Detention Centre.

8.D1 was found in possession of 3.86 grammes of ketamine.  He was with D2 at the time when they were intercepted by the Police.  Based on the nature and quantity of the drug involved, I consider a short sharp shock to be an effective punishment, which also offers him the opportunity to reform through strict discipline and strenuous training.  Hence, for Charge 2, I sentence D1 to a Detention Centre.

D2

9.D2 is also 17 years old and has a clear record. He is the only child of his family.  He was raised by his paternal grandmother and seldom had contact with his parents.  Prior to his arrest, D2 was an apprentice in a hair salon earning $5,000 per month.  Defence lawyer Mr. FU informed the court that D2's grandmother is suffering from depression and had a stroke.  D2 was in financial difficulty.  He was asked by a friend to deliver drugs in return for a reward of $1,000 per day. 

10.The sentencing tariff for trafficking in ketamine is laid down in SJ v HII Siew Cheng [2009] 1 HKLRD 1.  For over 1 gramme to 10 grammes, the sentence ranges from 2 to 4 years' imprisonment.  D2 trafficked in a total of 9.03 grammes of ketamine.  For such quantity, a starting point of 3 to 3.5 years' imprisonment would be appropriate had he been an adult.

11.Due to his age and clear record, I called for a Training Centre Suitability Report.  The report indicates that D2 is mentally and physically fit for Training Centre. The Commissioner also finds him suitable.

12.Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious) is no mitigating factor for committing a crime.  I cannot stress this enough.  Furthermore, a clear message must be conveyed to the general public that "drug trafficking" is a serious crime and that drug traffickers would most certainly be punished by long-term imprisonment.  On the other hand, I cannot overlook D2's age and his need for rehabilitation.  I bear in mind that correctional institutions such as Detention Centres and Training Centres exist for the benefit of young offenders.  These institutions play an important role in our penal system. Detention in a Training Centre would enable D2 to develop more insights into his problem.  Also, a period of disciplinary training coupled with a term of statutory supervision would be beneficial to his rehabilitation.  After careful consideration, I have decided to make a Training Centre Order, which will be the sentence for D2 in respect of Charge 1.