HKSAR v. Wong Wai Ting

DCCC 10/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 10 OF 2012

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Reasons for Sentence

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1.The defendant has pleaded guilty to one charge of trafficking in a dangerous drug, namely 23.81 grammes of a powder containing 19.74 grammes of ketamine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.The defendant was seen by a team of police officers to be acting furtively with two other persons at the corridor of the 9^th floor of Lancashire Centre, No 361 Shau Kei Wan Road, Hong Kong.  She was intercepted for inquiry and the dangerous drugs the subject matter of the charge were found from her, 9 transparent resealable plastic bags containing ketamine and 4 transparent resealable plastic bags from the left side of her bra, 11 transparent plastic bags containing ketamine and 4 transparent resealable plastic bags from the right side of her bra.  Some dangerous drugs were also found from each of the two persons who were with the defendant.  Upon inquiry, the defendant admitted that the dangerous drugs found on her person was ketamine, and that she had just sold the dangerous drugs found from the two persons with her, and they had not yet made payment to her, and this was her first time to sell ketamine.  22.43 grammes of a powder containing 18.61 grammes of ketamine were found on her, and 1.38 grammes of a powder containing 1.13 grammes of ketamine were found from the two persons who were with her.

3.After hearing counsel in mitigation, I adjourned the matter until today for sentence, and called for Background and Training Centre Reports, which are now before me. I have read them and taken them fully into consideration when deciding sentence.  The contents have been explained by counsel to the defendant and she agrees with the contents.  I did warn the defendant that the likely sentence for offences of this nature was an immediate custodial sentence.

4.Ms Tsang on behalf of the defendant entered mitigation.  The defendant is now aged 17 years.  She was 16 years old at the time of the offence.  She has a clear record, although she had been dealt with by way of superintendant’s discretion for an offence of theft in 2009.  She is the eldest child of the 7 children of her parents.  Her parents are separated and she lives with her mother and siblings.  Her mother suffers from depression.  The family receives CSSA.  She studied until Form 4, and because of her involvement in the present offence in July, 2011, her school did not allow her to continue her studies.  Save for working briefly in a café, she has been unemployed for most of the time since.  I am told that she suffers from asthma because of a serious allergy, although her condition has now stabilized, and she also has sleeping problems and weight issues.  Her behavior started to deteriorate when she was in secondary school.  She had little motivation to study, and started to loiter in the streets and returned home late, mixing with undesirable peers. Ms Tsang submitted that the defendant first took ketamine in the summer of 2011, being introduced to it by her friends from the park, and she had been offered the ketamine for free. In the Training Centre Report, she told the interviewing officer that she started sniffing ketamine in October 2010, whilst in the Background Report, she told the interviewing officer that she started to abuse ketamine since Form 4, and she had also tried cocaine once.  Regardless of when she first started to consume dangerous drugs, she has been examined by a medical officer who opines that she is a drug dependant. Clearly, she is susceptible to peer influence. Both of her parents have been in court  to show their support.  Four letters were submitted to this court. One of the letters was from the defendant herself, another from her younger sister, one from her social worker and the fourth from her aunt.  I have considered the contents of all these letters, wherein leniency is sought on behalf of the defendant.

5.Section 109A of the Criminal Procedure Ordinance, Cap 221, provides that no court shall sentence a person of or over the age of 16 years and under 21 years of age to imprisonment unless the court is of the opinion that no other method of dealing with such person is appropriate.  This provision, however, does not apply to offences of trafficking in dangerous drugs, which are excepted offences.

6.I do bear in mind the classical principles of sentencing and balance amongst the need for rehabilitation, retribution, deterrence and prevention.  Whilst rehabilitation for a young offender is always an important consideration, and it also serves the interest of the community, the need for punishment of the offender and deterrence of others must be given due regard, and in most circumstances, for offences of this nature, they best serve the interests of the community as a whole.  The appeal courts have made clear that save in very rare cases, a training centre order should not be imposed for trafficking in substantial quantities of dangerous drugs.  Here, the quantity is substantial.  The defendant would have been fully aware of the gravity of what she was doing and the risks that would be involved if she was apprehended.  The appeal courts have consistently held that for the offence of trafficking in dangerous drugs, unless it is a case of extreme youth, young age carries little weight in mitigation.  In the present case, the defendant was and is not a person of extreme youth.  Similarly, the defendant’s previous clear record carries very little weight in the offence of trafficking in dangerous drugs.  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.

7.In the Secretary for Justice v Hii Siew Cheng & Anor [2009] 1 HKLRD 1, the Court of Appeal laid down the tariffs for trafficking in ketamine.  For trafficking 10 to 50 grammes of ketamine, a term of imprisonment of between 4 to 6years is called for.

8.In the instant case, the ketamine involved is 19.74 grammes.  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 young age carries little weight in mitigation.  I have taken into account, as I have said, the contents of the reports before me.  I note that the defendant is not considered suitable for the training centre as she continues to be a drug dependant.

9.I also note that the defendant has had a difficult upbringing, though I would comment that many have had just as difficult an upbringing without turning to dangerous drugs.

10.In the present case, the matters urged upon me cannot detract from the fact that a deterrent sentence is called for as our society needs to get the message that trafficking in a dangerous drug is a very serious offence. I have full sympathy with the defendant’s family situation. Nonetheless, drug trafficking offences do call for substantial custodial sentences. Having considered the quantity of ketamine involved in this case and the defendant’s personal background, I am minded to adopt a starting point which is at the lowest end of the scale, i.e. 4 years.  In light of the defendant’s guilty plea, I shall give her the usual discount of one-third. I do not see any other mitigating factors that warrant any further reduction in sentence.

11.The defendant is sentenced to 32 months’ imprisonment.