The allegations of Count 1 are that the 1st defendant on 15 August 2012 at the staircase on 24th Floor, Pik Shan House, Shek Pai Wan Estate, Aberdeen, unlawfully trafficked in a dangerous drug, namely 182.34 grammes of a powder containing 145.69 grammes of ketamine.
The allegations against the 2nd defendant in Count 2 are that on the same day and at the same place, he unlawfully trafficked in a dangerous drug, namely 54.97 grammes of a powder containing 43.93 grammes of ketamine.
Facts Admitted
On 15 August 2012, the 1st and the 2nd defendants were under observation by the police officers at the staircase of 24th Floor of Pik Shan House, Shek Pai Wan Estate, Aberdeen.
The 1st defendant was standing on a rubbish bin, holding a screwdriver, trying to place a green plastic bag into an overhead cable duct.
The 2nd defendant was standing next to the 1st defendant holding two metal containers.
The police took action and seized the green plastic bag, inside which there were 14 resealable transparent plastic bags containing a total of 182.34 grammes of a powder containing 145.69 grammes of ketamine. Inside the two metal containers held by the 2nd defendant, there were 23 resealable transparent plastic bags containing a total of 54.97 grammes of a powder containing 43.93 grammes of ketamine.
When being arrested and cautioned, the 1st defendant said that the dangerous drugs belonged to him and he had asked D2 to hold them for him. In the video recorded interview subsequently conducted, the 1st defendant admitted inter alia that the green plastic bag was given to him by the 2nd defendant who had told him it contained ketamine.
The street value of all the ketamine seized was $29,901 in August 2012.
At the time of the offence the 1st defendant was aged 15 and the 2nd defendant aged 19.
Criminal Records
The 1st defendant has a clear criminal record.
The 2nd defendant has seven previous convictions, not similar to the present offence. He was convicted of the offences of behaving in a disorderly manner in a public place, criminal intimidation and failing to surrender to custody as appointed without reasonable cause, and was sentenced to drug addiction treatment centre on 13 August 2011.
Training Centre Report of the 1st Defendant
Before sentencing, the court obtains a training centre report for the 1st defendant. According to the report, the 1st defendant is considered suitable for detention in a training centre.
Mitigation
As pointed out in the Summary of Facts, the 1st defendant was aged 15 when he committed the offence.
Counsel for the 1st defendant points out that the 1st defendant was brought up in a broken family and his parents separated from each other when the 1st defendant was very young. He was entrusted to the care of his paternal aunt and was restored to the care of his father when he was studying in Primary 5. Due to the lack of parental supervision, the 1st defendant mingled with undesirable peers and went astray.
According to the counsel for the 1st defendant, the 1st defendant was admitted to a vocational training course in September 2012, but had to give up because of the remand in custody of the present case.
Counsel for the 1st defendant submits to the court mitigation letters of the 1st defendant, his mother and a social worker.
The 1st defendant states in the letter that he committed the present offence because of being exploited by bad peers. He has reflected on his misdeeds during the 17-month remand. He is remorseful and is determined to turn a new leaf. He feels regret for letting his family down. He will continue his studies in prison so as to better equip himself for his future life.
The mother states in the letter that the 1st defendant is a good natured person and has only committed the present offence because of the bad influence of undesirable peers. He is now truly remorseful. The mother promises to better look after the 1st defendant in future.
The social worker has expressed a good opinion of the 1st defendant and points out that the 1st defendant has now learnt a bitter lesson and is genuinely remorseful.
They all ask for leniency of the court.
Counsel for the 1st defendant cites the case of SJ v Lau Shing Kit CAAR 8/2011 for the reference of the court and asks the court not to send the 1st defendant to training centre, but impose on him a lenient imprisonment term.
The 2nd defendant was aged 19 when he committed the present offence and he is now aged 21.
The counsel for the 2nd defendant points out that the parents of the 2nd defendant divorced when he was aged 10. As his father worked in China as a fisherman, the 2nd defendant was looked after by his paternal grandparents. He behaved well when he was young, but went astray and associated with bad elements after the divorce of the parents.
The 2nd defendant left school after completing Form 1, but he attended a course called “Appearance of Teen Programme” in 2008 to 2009, which is equivalent to Form 3 level of study.
Counsel for the 2nd defendant states that although the 2nd defendant has a criminal record, there is no similar conviction, and he was lured to commit the present offence by DD traffickers.
The 2nd defendant has now been detained for 17 months and has made a deep and thorough reflection. He regrets letting his parents down and is genuinely remorseful.
Counsel for the 2nd defendant submits a letter of mitigation by a social worker who states that he has provided counselling service to the 2nd defendant regarding his emotion and family issues. In the opinion of the social worker, the 2nd defendant’s emotions towards with his parents were complicated and unresolved and the 2nd defendant may change for the good after learning a lesson from his conviction and releasing his emotional stress towards his family life.
Counsel for the 2nd defendant stresses that the 2nd defendant has learned a hard lesson and is genuinely remorseful. He asks this court to treat the 2nd defendant leniently.
Sentence
As rightly pointed out by counsel for the 1st and the 2nd defendants, the Court of Appeal has laid down clear sentencing guidelines for the offence of trafficking in ketamine in the case of SJ v Hii Siew Cheng CAAR 7/2006.
According to the guidelines, for a quantity of 10 to 50 grammes of ketamine, the starting point is 4 to 6 years’ imprisonment, while the starting point for 50 grammes to 300 grammes of ketamine is 6 to 9 years’ imprisonment. The amount of ketamine involved in Count 1 is 145.69 grammes of ketamine. The starting point is therefore about 7 years 2 months’ imprisonment.
The amount of ketamine involved in Count 2 is 43.93 grammes of ketamine and the starting point is about 5 years 8 months’ imprisonment.
For the sake of convenience, the court deals with the sentencing of the 2nd defendant first.
As pointed out above, he is now aged 21. Having considered his mitigation, the court sees no reason to depart from the sentencing guidelines, thus adopting 5 years 8 months’ imprisonment as the starting point.
Giving credit to the 2nd defendant for his plea of guilty, the court sentences him to 3 years 9 months’ imprisonment.
The 1st defendant was very young when he committed the present offence. He was aged only 15 and he is now aged 17. The court has to consider whether sending him to imprisonment is the best option for the rehabilitation of the 1st defendant and for society.
If the court is to follow the sentencing guidelines to adopt 7 years 2 months’ imprisonment as a starting point, after giving credit to his plea of guilty, the sentence would be one of 4 years 9 months’ imprisonment. He will receive one-third remission in sentence if he behaves well in prison. It follows that he may only need to serve a sentence of 3 years, 2 months’ imprisonment in the correctional institution. As he has already been in custody for about 18 months, he will be required to be in prison for another 20 months before his release.
According to the Training Centre Ordinance, a person sentenced to Training Centre will be detained in the centre for a period of not less than 6 months and not more than 3 years. Experience tells us that on average the period of detention in a training centre ranges from 18 months to 2 years. This is more or less the length of imprisonment the 1st defendant has to serve if he is sentenced to imprisonment.
As such, the court is of the view that sending the 1st defendant to training centre is in the best interest of society and the 1st defendant in terms of his rehabilitation.
In the training centre, the 1st defendant has the opportunity to receive disciplinary, academic and vocational training. More importantly, in the setting of the training centre, the 1st defendant will not be able to mingle with habitual and hardcore criminals. This, in the view of the court, is essential to his rehabilitation.
The court therefore sentences the 1st defendant to training
centre in respect of Count 1 to which he has pleaded guilty.