HKSAR v. Hon Ho Lam

DCCC 975/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 975 OF 2013

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REASONS FOR SENTENCE

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1.The defendant (male) (aged 17 years) appeared before me this afternoon and pleaded guilty to 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 the defendant on 10 August 2013 at 1st Floor, Grand Plaza, No 639 Nathan Road, Mongkok, Kowloon in Hong Kong unlawfully trafficked in a dangerous drug, namely 0.14 kilogrammes of a powder containing 0.10 kilogrammes of ketamine.

Facts

3.According to the amended summary of facts which has been admitted by the defendant, this was a stop and search case where two policemen were conducting anti-narcotics operations in plainclothes in Mongkok when they spotted the defendant who was standing at a bus stop near Grand Tower at No 639 Nathan Road.  The defendant was talking on the phone but when he saw uniformed police officers approaching him, he suddenly entered into the building.  Feeling suspicious, the two plainclothes officers followed the defendant and saw the defendant taking an escalator to the 1st floor and then entered the male toilet.  Later on, two males entered the toilets and chatted with the defendant.  When the defendant later walked out from the male toilet, he was stopped and searched by the police officers.  At that point of time, the defendant took out a black plastic bag under his trousers.  Inside, the police officers found 11 resealable plastic bags containing 0.14 kilogrammes of a powder containing 0.10 kilogrammes of ketamine.

4.Under caution, the defendant claimed that his wife was pregnant and he delivered the ketamine for others to earn money.  At the time of the arrest, defendant had with him two mobile phones and also some cash, including HK$3,721.80 and RMB63.10.  He also had a folded $500 banknote in the wallet which later, according to his admissions to the police officers, was the reward he had received for trafficking the drugs. 

5.In a video-recorded interview, in particular, he told the police that he was instructed by a man called “Ah Shek” in Shenzhen.  He was asked to go to Shatin to meet up a man and then bring the drugs and hide into a male toilet in Mongkok area.  According to the summary of facts, the street value of the dangerous drugs in question is about $16,940.

6.The defendant had a clear record.  At the time of the offence he was only 16 years of age and 9 months.  He is now 17 years old.  He had left the school without completing Form 2.  In the past he has been working as a transportation worker earning a salary of $10,800 per month.  He is still single, he was living together with his father who is now aged 55 and also a younger brother aged 16 in a village house in Shatin.  The father used to be a decoration worker but he was suffering from back pain and therefore is now receiving Comprehensive Social Security Allowance for living.  The defendant’s mother who is aged 38 is now living in China and is taking care of her own parents.  The defendant has a 20 year old girlfriend and she is now pregnant. They planned to get married after the Chinese New Year.

Mitigation

7.In mitigation, defendant’s solicitor, Ms Yu, emphasised the fact that the defendant has a clear record and he is very young and immature at the time of the offence.  The defendant had pleaded guilty in the first opportunity and fully cooperated with the police.  Ms Yu of course accepted that the offence for which the defendant had committed is a serious one, one which according to the tariff as laid down in SJ v Hii Siew Cheng [2008] 3 HKC 323 will attract a starting point as high as about 75 to 76 months.  However, Ms Yu submitted that this defendant was facing enormous pressure.  On one hand, he had huge economic pressure because of the family circumstances and on the other hand, he has the pressure of getting married and to be a father of the newborn son.  Ms Yu therefore submitted that it was a combination or accumulative effects of these circumstances that caused the defendant to choose the wrong path of the road and committed a serious offence such as the present. Ms Yu still urged the court to consider this unusual background and perhaps consider imposing a Training Centre Order.

8.During the mitigation, there are also some mitigation letters which are submitted on the defendant’s behalf.  All in all, it is submitted that this is an immature young man who had committed the offence for the first time in his life and she asked the court to be as lenient as possible.

Sentencing consideration

9.Trafficking in dangerous drugs is of course a very serious offence.  The Court of Appeal had already said that anyone who had been convicted with this offence would expect no mercy from the court.  A sentence of deterrent effect must be imposed in order not only to deter the defendant himself and also other people who like the defendant are contemplating to commit the offence in order to earn quick money. 

10.The defendant of course is young.  However, he is not extremely young. When dealing with a young defendant, usually the court would consider other sentencing options, particularly a non-custodial sentence, before sentencing the defendant into a prison.  However, according to s109(8) of the Criminal Procedures Ordinance, Cap 221 trafficking in dangerous drugs is one of those excepted offences which would allow the court to still send the young defendant straight into prison without having to first consider other non-custodial sentences.  Also in AG v Suen Yuen-ming [1989] 2 HKLR 403, the Court of Appeal had already said that save in very rare cases, a Training Centre Order for trafficking in substantial quantity of dangerous drugs should not be imposed.

11.In this case, the reason why the defendant committed the offence was mainly economic.  I can see no exceptional circumstances which can justify the court in considering a Training Centre Order and therefore despite the mitigation made by the defendant’s solicitor, the court is unable to accede to the request of such an order.

12.In fact, the Court of Appeal had already said that age, whether a defendant is young or old, would carry little weight in drug trafficking offences.  Only in rare cases that detention in Training Centre would be appropriate on a conviction for drug trafficking.  There is a considerable public interest involved.

13.Therefore, the most effective mitigation in this case is defendant’s plea of guilty which would entitle him the usual one-third discount.  I shall adopt 75 months as the starting point.

14.Giving the defendant the usual one-third discount, the sentence will come down to 50 months.  Further, I think I am able to still reduce the sentence to a little extent on account of the defendant’s youth and immaturity. In the end, I decided to reduce further by 4 months.

15.Accordingly, the defendant is sentenced to 46 months’ imprisonment which is 3 years and 10 months.