HKSAR v. Ho Yun Tin

DCCC1215/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1215 OF 2011

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Reasons for Sentence

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1.The defendant has pleaded guilty to one charge of doing an act preparatory to or for the purpose of trafficking in a substance believed to be a dangerous drug, contrary to section 4(1)(c) and (3) of the Dangerous Drugs Ordinance, Cap.134.

2.The defendant was stopped and searched on 20 September 2011 in Cheung Sha Wan, Kowloon, and on his person the police found four bags of white powder.  The defendant said he was delivering this powder which he said was ketamine for a fee of $300 for an “Ah Fai”.

3.He was told it was ketamine.  In fact, the powder, which weighed 100.08 grammes, was not ketamine but a poison.  But it is not just any poison, it is a poison that is a popular adulterant of ketamine, meaning it is mixed with ketamine for sale.  In itself it is not a dangerous drug, but the point is the defendant believed he was trafficking ketamine, and as I will refer to later, it is clearly not the first time he has delivered what he thought was ketamine.   

4.The defendant at the time of the offence was 17. He is now 18. 

5.The defendant did not have a clear record before this offence.  In 2008, he, for robbery, was placed on probation for 15 months. 

6.Mr Pang has, on two occasions now, mitigated on behalf of the defendant at length.  He has also produced and paraphrased for this court letters of mitigation from the defendant’s parents, letters from the defendant’s classmates asking for leniency, as well as a letter from a social worker who has known the defendant since 2008.

7.They all stress that the defendant is not a deep-set criminal juvenile delinquent.  He has unfortunately mixed with bad peers, bad friends, that have led to this offence.  All stress that he is remorseful, has promised to turn over a new leaf, and ask for leniency on his behalf.

8.I will take into account the defendant’s plea, which demonstrates remorse.  I have been told he is not a drug addict and that has been confirmed by the Training Centre report. 

9.Mr Pang has done his utmost to urge the court to consider a starting point of about 2½ years’ imprisonment to reflect the quantity and the nature of the powder on the defendant’s person. 

10.I was referred to several authorities by Mr Pang, including several District Court authorities: HKSAR v Fabio Lopes, DCCC272/2011, where a tourist trafficked into Hong Kong a powder which has medicinal qualities when he thought he was carrying cocaine; secondly, the authority of HKSAR v Ho Pak Lun and Another, DCCC1018/2010.  Those defendants were caught with a lot of powder which was used to manufacture NNDMA.  I have also been referred to an authority, HKSAR v Lau Sung Lai, DCCC58/2011. There the court took a 3 years starting point and in that case the defendant was in possession of 346 grammes of sugar when he thought it was “Ice”. 

11.I have also taken into account R v Yee Wing Leung, CACC159/1997.  In that authority, the defendant was storing powder.  He thought it was heroine, but in fact it was a powder used to mix with heroine, an adulterant. The Court of Appeal found a 3½ year sentence appropriate. 

12.Miss Lau from the prosecution has referred me to another Court of Appeal authority, HKSAR v Li Oi Yee, CACC362/2010.  In that authority, the defendant thought he was trafficking 39.5 grammes of “Ice”, but in fact it was not a drug at all.  The Court of Appeal upheld a 4 year term of imprisonment. 

13.The gravamen of this offence is that the defendant intended to traffic a dangerous drug, ketamine, and in a significant quantity. A deterrent sentence is not only appropriate but necessary.   

14.After mitigation and despite the quantity of powder and the seriousness of the offence, I called for a Training Centre report.  I called for a report in the main because of the defendant’s age. 

15.The report has come back.  The defendant agrees the contents of the report.  The report concludes that he is suitable for detention in a Training Centre and there is a place available. 

16.I do not intend to repeat the details of the report.  However, it starts with the defendant’s background and confirms that he was a good student until he entered secondary school.  His grades deteriorated, he became involved with bad peers and had a triad association. He became a school dropout.  He became involved in crime and ended up in court, arrested for robbery.

17.He told the officer that he started to dabble in dangerous drugs and in November 2010 started to take “Ice” on a regular basis. From then onwards, he hung out in the streets.  There was no parental control or discipline.  He told the officer that he actively engaged in drug peddling activities because he had no money to maintain his lifestyle.  He told the officer that he could earn around HK$50,000 a month.   

18.This picture painted by this report is very different to the picture painted by the mitigation letters I have received, and this information for this report came from the defendant himself. 

19.Clearly, from a read of this report, the defendant is in need of rehabilitation and the report concludes the same, training Centre would be of a benefit.   

20.Having read this report, having heard mitigation, considered the charge and the facts of the case, the defendant’s age, and the authorities that I have perused, I find that a term of imprisonment is not necessarily the best option.  Because of the need for rehabilitation, I find a Training Centre would be an appropriate sentence despite the seriousness of the case.         

21.For this offence, I am going to order the defendant to serve a Training Centre order.