HKSAR v. Au Yeung Tin Yau

DCCC 585/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 585 OF 2013

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REASONS FOR SENTENCE

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1.Defendant, you appeared before me two weeks ago, facing a single charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2.The particulars of offence avers that you on the 30th day of March, 2013, outside Room 2003, 20th Floor, Lung Wing House, Lower Wong Tai Sin (I) Estate, Kowloon, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 54.99 grammes of a powder containing 40.70 grammes of ketamine.

3.You pleaded guilty to the charge and you are represented by Mr Wong Yiu Tak, solicitor, assigned by the Director of the Legal Aid.

Facts

4.This is a simple straightforward stop-and-search case.  At around 2100 hours on 30 March 2013, two uniformed police officers were conducting anti-crime patrol at Lung Wing House, Lower Wong Tai Sin Estate when they saw you and another male, Fan Chi Tong, acting furtively and walked away quickly after seeing them.  You and your friend were therefore both intercepted and questioned by the policemen separately. 

5.Upon search, a transparent plastic bag containing 12 plastic bags containing suspected dangerous drugs was found inside the right rear pocket of your trousers.  Nothing suspicious was however found on the other male, Mr Fan. 

6.Under caution, you admitted that the ‘K Chai’ all belonged to you whilst Fan denied having any knowledge of the drugs. 

7.The government chemist has examined the drugs and certified that the suspected dangerous drugs contained a total of 54.99 grammes of a powder containing 40.70 grammes of ketamine, hence the present quantity of the drugs in the charge.

8.The estimated street value of the seized drugs was around HK$4,800.

9.By pleading guilty to this charge, you admitted that you were in possession of the seized drugs for the purpose of unlawful trafficking.

Criminal Record and Background

10.You had completed Form 3 education level. 

11.In the past, you have one criminal conviction involving four charges, namely two charges of “unlawful sexual intercourse with a girl under the age of 16” and another two charges of “making child pornography”.  You were sentenced on May 2012 in the magistracy where you received a concurrent sentence of Probation Order of 36 months for each charge, to run concurrently. 

12.You were unemployed before you were arrested.  After completing Form 3, you have taken a 7 days’ course in the Youth Employment and Training Programme organized by the Labour Department.  You have also worked briefly for 20-odd days as a delivery worker. 

13.In mitigation, Mr Wong told the court that you were deeply remorseful. You committed the offence because you have complied a request by your friend to go to the back staircase to fetch the dangerous drugs.  In return, you would receive a meagre sum of HK$500.  Mr Wong told me however that you were not addicted to dangerous drugs although you have tried ketamine before.  The reason principally why you committed the offence is because you wanted money for your daily expenses to go out with your friends and foolishly you have succumbed to the temptation of the money and committed the present offence.

14.Mr Wong acknowledged the gravity of the offence.  However, he still urged the court to consider first obtaining reports, both from the Probation Service as well as from the Correctional Service to see if it is a suitable case to consider imposing an institutional order instead of imprisonment.

15.In the end I accepted the submission and I adjourned your sentence for two weeks’ time in order to obtain those reports.

Sentencing Considerations

16.Trafficking of dangerous drugs is of course a very serious offence. Anyone who was involved in this kind of criminal activity once caught would be expected to be dealt with severely by the court.  The present charge involved altogether some 40.70 grammes of ketamine and they were contained in 12 plastic bags.

17.Ketamine is becoming very popular especially among youngsters these years and was widely abused by the youthful population in Hong Kong.  In 2007 the Secretary of Justice has applied to the Court of Appeal to increase the sentencing tariff for trafficking in ketamine.  Finally, in the case of Secretary of Justice v Hii Siew Cheng [2008] 3 HKC 323 the Court of Appeal laid down the new guidelines for trafficking in ketamine.  For a quantity of ketamine between 10 to 50 grammes, the starting point would be 4 to 6 years’ imprisonment. 

18.The present case involved some 40 grammes of ketamine so it would be fair to say that applying the above guideline, the appropriate starting point would be one of 5 years’ imprisonment.  You have pleaded guilty which is the only effective mitigating factor in this case for which you would receive a customary one-third discount.  If you are an adult prisoner, the sentence that you are to receive would be normally around 40 months’ imprisonment. 

19.Of course, you were only 16 years of age.  By saying this, I must remark that trafficking in dangerous drugs is a very serious offence and as such it is one of those excepted offences in the schedule of the Criminal Procedure Ordinance whereby the court can still sentence a young defendant such as you to prison despite the provision in section 109A of the Criminal Procedure Ordinance. 

20.Today I have the benefit of reading both reports from the Correctional Service as well as the Probation Service.

21.The probation officer spoke of you still failed to either further your senior secondary education or take up any proper job during the currency of the Probation Order.  The probation officer was of the view that you committed the present offence because you were under the stress of shortage of social money and you turned to be a drug courier.  The probation officer concluded that you have committed an obvious breach of your existing probation order.  He asked the court that your breach of the Probation Order to be dealt with accordingly. 

22.In the Training Centre Report, you were assessed to be mentally and physically fit for detention in training centre.  The report concluded that in view of your weak self-control and law-abiding concept, a period of disciplinary training coupled with a term of statutory supervision would be benefit to you.

23.Today, Mr Wong told the court that you urged me to impose a Training Centre Order.  You were said to be fully remorseful and you were hoping that by being sent to the training centre, you would have an opportunity to learn some skills there while serving your sentence.  I was told you aspired to be a vehicle repairer in the future. 

24.Mr Wong accepted the gravity of the offence but he stressed that the street value of the dangerous drugs in this case was small and he asked the court to give you a final chance. 

25.The maximum time for detention in a training centre is 3 years. Although I said that if you were sent to the prison, the sentence would be 40 months which is of course above 3 years but if you were to behave properly while serving a sentence in the prison, normally you would still receive some remission.  In the end, I reckon that, in terms of the length of the period of detention, either sending you to the Training Centre or the prison would probably make no huge difference.

26.However I consider that the Training Centre can offer some training to a troubled young man such as you.  Also there is statutory supervision even after you were discharged from the Training Centre.  During the supervision period, if you have any further trouble with the law, you would be immediately recalled back to the Training Centre.

27.Although you are not of extreme youth, you are still young and to a large extent, I am of the view that you committed the offence because you did not consider the consequences and this reflects that this offence is committed by you due to your immaturity.

28.Principally because you have pleaded guilty which is a strong indication of remorse in this case, in the end, I am persuaded that perhaps I should give you a last chance by sending you to the Training Centre.

29.On the last occasion, I already gave a stiff warning to you.  I have already told you that if you carry on like this and commit offence of this kind, thinking that you are young and therefore you would be leniently dealt with again, you must be seriously mistaken.

30.In the past, the court had already been lenient by giving you a chance for Probation and obviously you did not treasure your opportunity.  That is why you would end up now in the Training Centre in the next few years. 

31.If you still fail to learn the lesson even in this hard way, I am sure in the future, you would just end up in lengthy incarceration in prison. 

32.For this offence, you are therefore sentenced to the Training Centre. As there is a clear breach of your existing Probation Order and because of the Order that I made today, your existing Probation Order would be discharged forthwith. I would substitute it with a Training Centre Order in respect of each of the above-mentioned four previous offences.  Those Orders will of course run concurrently with the Order imposed in the present case.