HKSAR v. Cheng Chun Long

DCCC 114/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 114 OF 2014

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REASONS FOR SENTENCE

1.You have pleaded guilty to one charge of trafficking in 609.36 grammes of a powder containing 113.96 grammes of ketamine, contrary to section 4 of the Dangerous Drugs Ordinance, Chapter 134.

2.In summary in the evening of the 15 December last year the police intercepted you at the car park of Sha Chau Lei Village in Tin Shui Wai.  You were then taken to the 1/Floor of House No. 43 where you had lived for one week.  The police executed a search warrant and inside your room found two black plastic bags containing the ketamine, one plastic spoon and 86 zip-lock bags.  Under caution and in a subsequent video interview you said you had no money therefore you collected the drugs which you divided into smaller packets for sale.

3.I have carefully considered everything said on your behalf by Mr Lam, in particular that you were only 15 at the time of the offence having turned 16 whilst on remand.  I have read the letter of mitigation written by your mother promising to provide you full support in your rehabilitation.  I also take into account that you have no previous convictions for drug offences. 

4.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 50 and 300 grammes sentence after trial falls within the range of 6-9 years imprisonment.

5.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. 

6.I have therefore called for a background report from the probation service together with a training centre suitability report to provide me with further information about you, in particular as to your performance whilst on probation and whether or not you are a drug addict.  I have carefully considered the content of the reports.

7.The reportsreveal that whilst studying in Form 1 you began to associate with dubious peers with triad background.  This led to you becoming involved in illegal activity including gang fights.  You first appeared in court in May 2012 for an offence of violence for which you were placed on probation.  Your response to probation was poor and in July 2012 you appeared in court for breach of probation.  You also appeared in court in September 2012 for another offence of violence when you were again placed on probation with a condition you reside in the Tuen Mun Children and Juvenile Home. 

8.Notwithstanding the residential training provided by the home you continued to associate with your delinquent peers.  Under their influence you began taking cocaine in April 2013 since which time you have consumed cocaine at least two or three times per week and have resorted to drug trafficking to support your drug habit.  Although the probation orders have both now expired the present offence was committed whilst you were still subject to the second probation order. 

9.I note from the background report you and your mother both beg for a chance to receive training in a Training Centre.  I warned you that the appeal courts have made very clear that save in very rare cases a training centre order should not be imposed for trafficking in substantial quantities of dangerous drugs (see Secretary for Justice v Ko Fei Tat [2002] 4 HKC 59 and Secretary for Justice v Lau Shing Kit [2012] 5 HKLRD 297).

10.By reason of your drug habit the medical officer has assessed you to be drug dependant and therefore not suitable for detention in a Training Centre.  After very careful consideration I am satisfied that this is not one of those very rare cases where a training centre order would be appropriate.  The fact you resorted to drug trafficking to support your addiction is also not a mitigating factor.  Notwithstanding your young age and that you have spent over four months in custody I am satisfied there are no exceptional circumstances warranting departure from the guidelines.

11.Although you are found to be a drug dependant Mr Lam has confirmed that all the drugs were for trafficking with none to be kept for your own consumption.  On a purely mathematical approach a starting point of 6 years and 9 months imprisonment would be appropriate for 113.96 grammes of ketamine.  Balancing the fact that the offence was committed whilst you were on probation with the fact that you were only 15 at the time of the offence and that you have no previous drug offences I am satisfied a starting point of 6 years imprisonment is appropriate.  Giving you full credit for your plea of guilty you are convicted and sentenced to 4 years imprisonment.

12.In view of the long sentence imposed and that the second probation order has now expired I propose to take no further action by reason of the commission of a further offence during the probation period (see section 6(6) of the Probation of Offenders Ordinance, Chapter 298).