HKSAR v. Tsui Yuen Kiu and Another

DCCC 943/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 943 OF 2013

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REASONS FOR SENTENCE

D1 and D2 are jointly charged with an offence of "Trafficking in a dangerous drug". They both pleaded guilty to the charge. The dangerous drug involved is ketamine.

Summary of Facts

2.About 11:45 pm on 31 July 2013, police officers stopped D1 and D2 at Pier 5 in Central for enquiry.

3.D1 was searched in a toilet.  Four plastic bags (later found to contain a total of 39.62 grammes of a powder containing 31.46 grammes of ketamine) were found inside her bra.  She was arrested.

4.D2 was also arrested.  Under caution, he admitted that he was acting as a lookout for D1.

5.In her video recorded interview, D1 claimed that D2 called her on that night, asking her to bring the drug to Cheung Chau. She agreed to do so.  They took a taxi together.  During the journey, she received 4 packets of dangerous drug from D2 and then put them in her bra.  D1 admitted that she knew the dangerous drug would be brought to Cheung Chau and that she would be paid for bringing the drug there.

6.In his video recorded interview, D2 claimed that he acted as a lookout.  On that night, D1 called him, asking him to accompany her to deliver ketamine to Cheung Chau.  So he went to Yau Tong to pick her up.  They took a taxi together to go to the pier in Central.  D2 admitted that he believed D1 had dangerous drug on her.

Mitigation

D1

7.She is 19 and has 2 conviction records involving 3 offences, one of which is "simple possession".  She was put on probation twice.  She committed the present offence when her 2^nd Probation Order was still in effect.  A bundle of mitigation letters was placed before me; their contents are duly noted.

8.In view of her young age, sentencing was adjourned to obtain a Training Centre Suitability Report.  The Report is a favourable one; the officer considers D1 suitable for detention in a Training Centre.  Comments from her social worker about her voluntary services are also positive.

D2

9.He is 22 and has a clear record.  He resides with his family in Cheung Chau.  His parents run a holiday bungalow business on the island.

10.According to his antecedent statement, D2 has held various jobs since 2008.  He currently runs his own instant camera and film business.  Mr. Boyton submitted that D2 is a ketamine addict and that he should receive more than the usual one-third discount because without his confession, there would have been insufficient evidence to charge him.[1]

Sentence

11.A clear message must be conveyed to the general public that "drug trafficking" is a serious crime and that drug traffickers would most certainly be punished by long-term imprisonment even for fresh offenders.

12.The Court of Appeal has laid down clear sentencing guidelines for trafficking in ketamine (see  SJ v HII Siew Cheng [2009] 1 HKLRD 1) For 10 to 50 grammes, the sentence ranges from 4 to 6 years' imprisonment.  In the present case, the defendants trafficked in 31.46 grammes of ketamine.  For that quantity, the appropriate starting point is 5 years.

13.I note that under caution, both defendants tried to shift the blame by alleging that the other person was the instigator of the crime.  For the purpose of sentencing, I need not and would not be able to determine who instigated the crime based on the available materials.[2]  In my view, according to their own admissions, the culpability of each defendant is the same.  Had all things been equal, their respective punishment would have been the same.

14.I will deal with D2 first.  I adopt 5 years' imprisonment as the starting point.  A one-third discount is given for the guilty plea, reducing the sentence to 40 months.  I accept that there would have been insufficient evidence against D2 but for his admission.  On this basis, I will grant him a further reduction of 4 months. D2 is sentenced to 36 months' imprisonment.

15.Regarding D1, I am aware of the sentencing tariffs.  I have borne in mind the length of the prison term she is likely to receive had she been over 21.  On the other hand, I cannot overlook her age and her need for rehabilitation.  I have reminded myself that correctional institutions such as Training Centres exist for the benefit of young offenders.  These institutions play an important role in our penal system. Detention in a Training Centre would enable D1 to strengthen her law-abiding concept.  A period of disciplinary training coupled with a term of statutory supervision would be beneficial to her.  She would also have the opportunity to study and/or to receive some vocational training. After careful consideration, I have decided to make a Training Centre Order, which will be the sentence for D1.