HKSAR v. Mo Jincong

DCCC 663/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 663 OF 2013

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REASONS FOR SENTENCE

1.The defendant pleads guilty to one charge of trafficking in 49.12 grammes of a powder containing 40.26 grammes of ketamine, contrary to section 4 of the Dangerous Drugs Ordinance, Chapter 134.

2.In summary at about 10:08 a.m. on the 19 May this year the police intercepted the defendant inside Choi Hung MTR station.  Upon search of the defendant’s shoulder bag the police found four re-sealable plastic bags each containing five re-sealable bags inside which was the ketamine.  The police also found inside the shoulder bag twenty one empty re-sealable plastic bags, two mobile phones and $4,422.  The defendant remained silent under caution.

3.In Secretary for Justice v Hii Siew Cheng[2008] 3 HKC 325 the Court of Appeal laid down guidelines for trafficking in ketamine.  Where the narcotic content is between 10 and 50 grammes sentence after trial falls within the range of 4-6 years imprisonment.

4.The defendant is only 18. Section 109A of the Criminal Procedure Ordinance, Chapter 221 provides no court shall sentence a person of or over 16 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.  Whilst this provision does not apply to trafficking in a dangerous drug, which is an excepted offence, a court must exercise great care before committing a young offender to prison. 

5.I therefore called for a Training Centre suitability report to provide me with further information about the defendant, warning the defendant that even if training centre was recommended this did not mean I was going to impose a training centre order.  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 (see for example Secretary for Justice v Ko Fei Tat [2002] 4 HKC 59).

6.I have carefully considered everything said by Miss Yang on behalf of the defendant together with the content of the defendant’s letter. Although the defendant cannot be said to be of extreme youth I take into account his young age, that he has been brought up in a single parent family and that he has no previous convictions. 

7.The report reveals that the defendant came to Hong Kong in 2005.  Academic results were not satisfactory resulting in the defendant dropping out of Form 1 in April 2010.  After leaving school the defendant started work as a kitchen worker but only managed to stay in the job for one week.  The defendant mingled with dubious peers and indulged in nocturnal pleasure seeking activities including wandering on the streets aimlessly until the early hours of the morning.  As a consequence the defendant was unable to maintain stable employment working intermittently as a shampoo boy and a casual stage fixing worker.  In May this year acting under peer pressure and with the promise of a reward of $3,000 the defendant out of his thirst for fast money to support his lifestyle became involved in trafficking drugs. 

8.Whilst on remand the defendant has managed to comply with the institutional rules and regulations.  The Rehabilitation Assessment Officer is of the view by observation the defendant has shown only a little sense of remorse towards his misdeeds and has not yet developed any insight into his problems and still indulges in his questionable mode of thinking.  Miss Yang submits the defendant is remorseful and because he is shy and introverted he was not able to express himself fluently to the officer.  I must say the description of the defendant throughout the report is not one of a shy, introverted young boy. 

9.The Rehabilitation Assessment Officer is of the opinion that much doubt is cast on the defendant’s determination to amend and therefore in order to help him develop more insight into his misdeeds a period of disciplinary training is recommended. The defendant asks to be sent to the Training Centre because he would like to take care of his mother.

10.After very careful consideration I am satisfied that this is not one of those very rare cases where training centre would be appropriate.  Although young the defendant was willing to sell dangerous drugs in order to earn fast money to sustain his lifestyle.  Notwithstanding the defendant’s young age I am satisfied there are no exceptional circumstances warranting departure from the guidelines. 

11.Taking into account the defendant’s young age and clear record I am satisfied the proper starting point after trial for 40.26 grammes of ketamine is 5 years and 6 months imprisonment.  Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 3 years and 8 months imprisonment.