HKSAR v. Wu on To

DCCC 574/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 574 OF 2014

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Reasons for Sentence

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1.The defendant pleaded guilty to one charge of trafficking in a dangerous drug, contrary to s.4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134. Particulars of the charge are that he on 9 May 2014 unlawfully trafficking in 129.65 g of a powder which contained 108.72 g of ketamine at Room 132D, North Point Police Station.

Summary of facts

2.Police officers on anti-narcotic operation spotted the defendant and a male acting furtively outside the FitFort shopping mall. The Police officers observed them for a few minutes and then went up to intercept them and demanded to conduct a search.

3.Since the defendant and the male refused to be searched on the spot, they were brought to North Point Police Station and searched there. 5 transparent re-sealable plastic bags containing 49 plastic bags were found in the defendant’s underpants. The powder inside the plastic bags were later sent for analysis and confirmed to be 129.65g of powder containing 108.82g of ketamine.

4.The defendant was arrested and cautioned but indicated he had nothing to say. Upon further searching, $6,802.30 and an iPhone were found on him. A house search was conducted at the defendant’s residence but nothing incriminating was found.

5.The estimated street value of the ketamine is $15,817.

Previous Convictions

6.The defendant has a clear record.

Mitigation

7.The defendant was born on 2 August 1997 and is just over 17 years old at the time of sentencing. He committed the offence when he was just 2 months shy of 17.

8.Mr. Ip pointed out to the court that the defendant was not the mastermind in the case and that there is no evidence to show that the defendant was involved in any large scale commercial trafficking, nor was there an international element to the case. The defendant just received $500 for trafficking the dangerous drugs. At the material time, it was the defendant’s friend ‘Fei Him’, whom he got to know when frequenting arcades, who persuaded the defendant to help deliver the drugs. Out of foolishness and greed, the defendant agreed.

9.The defendant has a clear record but did receive a Superintendent’s caution for theft. Mr. Ip explained that it was the defendant’s mother who got so angry with the defendant when she found that the defendant had taken her phone that she decided to call the Police. I will not take this as an aggravating factor when considering the defendant’s sentence.

10.The defendant is living with his parents and elder sister. The defendant is educated up to Form 4 level. He worked as a waiter and was a worker in a logistic company before, and was working in his father’s company prior to the arrest.

11.I was told that the defendant’s family was shocked about the defendant’s commission of the offence. During the last 3 months, the defendant’s parents and sister visited the defendant everyday in the remand centre. They have also written letters, attesting to the change in the defendant’s attitude and his remorse. The family remains in full support of the defendant.

Sentencing Guidelines

12.The tariff sentence for trafficking in Ketamine is found in the case of Secretary for Justice v Hii Siew Cheng (許守城) [2009] 1 HKLRD 1, CAAR7/2006. The tariff sentence after trial for traffickers in ketamine of 50 to 300 grammes is that of 6 to 9 years’ imprisonment.

Sentence

13.The maximum sentence for trafficking in dangerous drugs is that of life imprisonment.

14.The defendant is 17 years old. Trafficking in dangerous drugs is an excepted offence under Schedule 3 of the Criminal Procedure Ordinance, Cap.221. As such, s.109A of the same Ordinance regarding imprisonment as a last option for those under 21 does not apply.

15.In the case of Secretary for Justice v Ko Fei Tat, CAAR15/2001, the Respondent was 18 when sentence was imposed. Just as our defendant, the Respondent committed the offences when he was nearly 17. All the offences relating to the Respondent were connected to trafficking in dangerous drugs. The Respondent was sentenced at first instance to be detained in a training centre because of his age, his clear record and the fact that he had only taken part in 4 transactions in the 10 charges. The total narcotics involved was just under 70g of ‘Ice’ and would have attracted a starting point of between 7 to 10 years’ imprisonment.

16.The Court of Appeal found that the original sentence was manifestly inadequate and wrong in principle and stressed the importance of imposing deterrent sentences in drug trafficking cases. An immediate custodial sentence was substituted and the Respondent received a final sentence of 4 and a half years’ imprisonment after the Court took into consideration other mitigating factors.

17.Mr. Ip for the defendant in our case did not go through a long mitigation, no doubt realizing the seriousness of the offence and the stance that the courts have taken before when dealing with young people trafficking in large quantity of dangerous drugs. Since Mr. Ip acts on instructions from the defendant and his family, I find that Mr. Ip’s submissions is a reflection on the courage on their part to accept full responsibility for the defendant’s conduct, without trying to find excuses. In the long run, I am sure that this attitude will serve the defendant well and he should be able to get back on the right track. Be that as it may, this lack of mitigating factors also mean that there are no grounds for me to depart from the sentencing tariff.

18.With the relatively large quantity of ketamine involved, with there being no exceptional circumstances, and most importantly with the need to impose a deterrent sentence, I find that an immediate custodial sentence is the only appropriate sentence. I will adopt a starting point of 75 months’ imprisonment, discounting it by one-third in recognition of the defendant’s guilty plea, and sentence him to 50 months’ imprisonment.