DCCC 940/ 2008
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO.940 OF 2008
HKSAR
V
Mak Yu-pong Defendant
------------------------
Before: Deputy District Judge Eddie Yip
Date: 19 Jan 2009 at 10:00am
Present: Mr. Shaun Kelly, Counsel on Fiat for HKSAR
Mr. Surman Giles, instructed by Messrs Andrew Chan & Co.,
assigned by DLA, for Defendant
Charge: Trafficking in a dangerous drug (販運危險藥物)
Reasons for Sentence
The charge and facts
1. The Defendant pleads guilty to trafficking in a dangerous drug,
ketamine, contrary to section 4 of the Dangerous Drugs Ordinance, Cap.
134. In the evening of 9 July 2008, he was walking on the corridor of the
4th floor of a building. The police stopped and searched him. They
found a Japanese candy box in the pocket of his trousers. The box
contained 2 packets of ketamine, which was subsequently analysed and
weighed. The first packet contained a mixture of 25.46 grammes
containing 20.41 grammes of ketamine. The second packet contained a
mixture of 11.55 grammes containing 9.02 grammes of ketamine. The
street level retail value of the mixture, in total, 37.01 grammes, was
$4,700.
2. Under caution he admitted that he had bought the ketamine at
$3,000 for resale in a games centre for profit.
The Defendant’s circumstances
3. I have ordered for the Background Report and Training Centre
Report. The Defendant is now 17 years of age. He was 17 on the date of
1
the offence. He was bound over for common assault in 2008. He
attained F. 2 education. He did various unskilled jobs. His parents have
divorced. He lives with his father. He has 2 half-sisters, the children of
his mother and her cohabitant.
4. As his father was busy at work, he received little supervision and
guidance. He lost interest in studies. He liked frequenting cyber cafes
and video game centres. He started courtship. He played truant or stayed
out late or overnight to do both. He carried on his work life with the
same attitude. In order to make money for his pleasure-seeking, he
committed the present offence.
The sentencing principles
Prison or the training centre
5. Section 109A of the Criminal Procedure Ordinance, Cap. 221,
provides:
(1) No court shall sentence a person of or over 16 and under 21 years
of age to imprisonment unless the court is of opinion that no other
method of dealing with such person is appropriate; and for the purpose
of determining whether any other method of dealing with any such
person is appropriate the court shall obtain and consider information
about the circumstances, and shall take into account any information
before the court which is relevant to the character of such person and
his physical and mental condition.
(1A) This section shall not apply to a person who has been convicted of
any offence which is declared to be an excepted offence by Schedule 3.
The offence of trafficking in dangerous drugs is under section 4 of the
Dangerous Drugs Ordinance, Cap. 134, an excepted offence by Schedule
3.
Prison sentence guidelines
6. On 6 June 2008 the Court of Appeal laid down sentencing
guidelines for trafficking in ketamine in SJ v Hii Siew Cheng CAAR
7/2006 in place of HKSAR v Lee Tak-kwan [1998] 2 HKLRD 46. As the
2
present offence took place on 9 July 2008, SJ v Hii Siew Cheng is
applicable. The scale of imprisonment is as follows:
(1) Up to 1 gramme – discretionary;
(2) Between 1 and 10 grammes – 2 to 4 years;
(3) Between 10 and 50 grammes – 4 to 6 years;
(4) Between 50 and 300 grammes – 6 to 9 years;
(5) Between 600 and 1,000 grammes – 12 to 14 years;
(6) Over 1,000 grammes – 14 years or more.
7. The present case concerns 29.43 grammes of ketamine. It falls
within 4 to 6 years.
Prison sentence and the offender’s youth
8. In re Applications for Review of Sentences [1972] HKLR 370,
Leonard J, at 417 reiterated the view that:
It is true that the personality, youth or personal circumstances of the
offender may pale into insignificance because of the magnitude or
prevalence of the offence in question.
9. In R v Chung Man-kit [1990] 1 HKC 87, the applicant was between
20 and 21 when he committed 12 robberies, all in the lift and of lone
females. A paper cutter was used to intimidate and, in two cases, to cause
minor injuries to the victims. He had a string of previous convictions
including common assault, assault occasioning actual bodily harm,
possession of dangerous drugs and possession of dangerous drugs for the
purpose of unlawful trafficking. He had been given probation,
reformatory school order, Drug Addiction Treatment Centre order, and
suspended sentence. The suspended sentence was still operative when he
committed the 12 robberies. He was sentenced to a concurrent term of 9
years for all charges. The Court of Appeal reduced it to 7 years.
10. In dealing with the submission in mitigation that the youth of the
applicant had to be given sufficient weight, Silke V-P observed, at para. 9:
On this last submission it was made clear in a number of cases, in
particular The Queen v. Kwok Man Hung and Others, Criminal Appeal
17 of 1983 (unreported) and The Queen v. Chan Chi Fai and Others,
3
Criminal Appeals No. 593 and 643 of 1983 (unreported) that where a
series of robberies is concerned the youth of those who commit them is
not a strong mitigating factor. As was said, and as is apposite to the
offences here, in The Queen v. Chan Chi Fai at page 4:
"This type of offence is unfortunately a very common one. The youth of
applicants appearing in this Court, and of defendants at trial, is of
course of very grave concern. But we feel where there is a multiplicity
of offences of this nature that the public interest must be served over
and above the individual interests of the applicants despite their youth."
11. In Secretary for Justice v Ko Fei-tat [2002] 4 HKC 59 which
concerned trafficking in dangerous drugs, Stuart-Moore VP said at paras.
23 to 25:
23. We are in no doubt, as this court said in Attorney General v Suen
Yuen-ming [1989] 2 HKLR 403, that save in "very rare cases", a
training centre order for trafficking in substantial quantities of
dangerous drugs should not be imposed. In that case, the exceptional
circumstances found by the court to have justified the making of a
training centre order included the fact that the respondent had been
threatened that if he did not comply with a demand that he should store
the drugs in question, his girlfriend would be harmed and the family's
cooked food stall business would be disrupted, mitigation which had
been accepted by the first instance judge. (It is to be noted that this
case was decided before the amendment in 1994 to section 109A to
include trafficking in dangerous drugs as an 'excepted' offence.)
24. Exceptional circumstances, which are somewhat elusive, were also
found in Attorney-General v Kong Kin-man [1997] HKLRD 350, where
the headnote at (2) reads:
"(2) Age, whether youth or old age, carried little weight in drug
trafficking offences. It was only in rare cases that detention in a
training centre was appropriate on a conviction for drug
4
trafficking (A-G v Suen Yuen Ming [1989] 2 HKLR 403 followed).
There was a considerable public interest involved in showing by
deterrent sentences that the courts would treat drug trafficking
most severely."
25. In that case, where a District Court judge had made a detention
centre order for trafficking in a mixture containing just over 13 grammes
of heroin, the court found, when substituting a training centre order,
that there were no indications of the respondent having embarked on a
calculated course of criminal conduct and that it was more a case of a
young man "momentarily coming under the influence of a more
experienced companion".
The training centre
12. Section 4(1) of the Training Centres Ordinance, Cap. 280, provides
Where a person is convicted of an offence punishable with
imprisonment, then if on the day of his conviction he is in the opinion of
the court not less than 14 but under 21 years of age, and the court id
satisfied that it is in the interest of the community and that having
regard to his character and previous conduct and to the circumstances
of the offence, it is expedient for his reformation and for the prevention
of crime that he should undergo a period of training in a training centre,
the court may, in lieu of any other sentence, pass a sentence of
detention in a training centre.
13. Section 4(2) provides:
A person sentenced to detention shall be detained in a training centre
for such period, not extending beyond 3 years from the date of his
sentence, as the Commissioner may determine, and shall then be
released:
5
Provided that the Commissioner shall not release any such person
before the expiration of 6 months from the date of his sentence, unless
required to do so by direction of the Chief Executive.
14. In Wong Chun-cheong v HKSAR (2001) 4 HKCFAR 12, at 24
Riberio PJ summarized the proper approach of a court to the making of a
training centre order:
(1) The court should first be satisfied that the threshold requirements
are met, ie, that the offence is punishable with imprisonment, and that
the offender is aged between 14 and 21.
(2) The court should then consider whether in the case at hand, the
interest of the community requires that the rehabilitative approach
should give way to a punitive or deterrent sentence. If so, the training
centre option should not, save in exceptional cases, be adopted.
(3) Where the circumstances of the offence are such that a training
centre order would be too lenient, the court is entitled to reject that
option notwithstanding that the offender would otherwise be regarded
as a suitable candidate for training.
(4) Similarly, where the offence committed is minor and would not
otherwise call for a custodial sentence, detention in a training centre
would, save in exceptional cases, be inappropriate, notwithstanding the
offender’s suitability as a candidate for training.
The sentence I pass
15. On the one hand, if I have to consider a prison term based on the
present facts, an offender aged over 21 is likely to face 5 years’
imprisonment as a starting point, to be reduced to 3 years 4 months on a
plea of guilty. The authorities suggest that a young trafficker of
dangerous drugs is not likely to get much credit for his age (re
Applications for Review of Sentences; R v Chung Man-kit).
16. On the other hand, when considering the suitability of the training
centre, regard has to be had to the four factors raised by Ribeiro PJ in
6
Wong Chun-cheong v HKSAR. Applying them to the present facts, it will
be seen that:
(1) The offence is punishable with imprisonment, and that the offender
is aged between 14 and 21.
(2) The interest of the community requires that the rehabilitative
approach should not give way to a punitive or deterrent sentence.
(3) The circumstances of the offence are not such that a training centre
order would be too lenient.
(4) The offence committed is not minor and would call for a custodial
sentence.
17. As the present offence is an excepted offence, section 109A of the
Criminal Procedure Ordinance, Cap. 221, which provides that a prison
term must only be kept as a last resort, is not mandatory. The court may
impose a prison term even if it is not the last resort.
18. According to the Training Centre Report, he is mentally and
physically fit. From the information available and after a general
assessment of his behavior and attitude, he is deemed suitable for
detention in a Training Centre.
19. In my view, the Defendant is going down on the fast track. He still
stands a chance if he is guided back in time, and the present instance is no
doubt a prime time to do so. Saving him will also be in the interest of the
community. With an appraisal that a training centre order is a lighter, if
not exceptional, option in the present case, I make it the present sentence.
20. He was bound over for common assault in 2008. It is still
operative but I do not propose to make any order on it.
Eddie Yip
Deputy District Judge
7
DCCC 940/ 2008
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO.940 OF 2008
HKSAR
V
Mak Yu-pong Defendant
------------------------
Before: Deputy District Judge Eddie Yip
Date: 19 Jan 2009 at 10:00am
Present: Mr. Shaun Kelly, Counsel on Fiat for HKSAR
Mr. Surman Giles, instructed by Messrs Andrew Chan & Co.,
assigned by DLA, for Defendant
Charge: Trafficking in a dangerous drug (販運危險藥物)
Reasons for Sentence
The charge and facts
1. The Defendant pleads guilty to trafficking in a dangerous drug,
ketamine, contrary to section 4 of the Dangerous Drugs Ordinance, Cap.
134. In the evening of 9 July 2008, he was walking on the corridor of the
4th floor of a building. The police stopped and searched him. They
found a Japanese candy box in the pocket of his trousers. The box
contained 2 packets of ketamine, which was subsequently analysed and
weighed. The first packet contained a mixture of 25.46 grammes
containing 20.41 grammes of ketamine. The second packet contained a
mixture of 11.55 grammes containing 9.02 grammes of ketamine. The
street level retail value of the mixture, in total, 37.01 grammes, was
$4,700.
2. Under caution he admitted that he had bought the ketamine at
$3,000 for resale in a games centre for profit.
The Defendant’s circumstances
3. I have ordered for the Background Report and Training Centre
Report. The Defendant is now 17 years of age. He was 17 on the date of
1
the offence. He was bound over for common assault in 2008. He
attained F. 2 education. He did various unskilled jobs. His parents have
divorced. He lives with his father. He has 2 half-sisters, the children of
his mother and her cohabitant.
4. As his father was busy at work, he received little supervision and
guidance. He lost interest in studies. He liked frequenting cyber cafes
and video game centres. He started courtship. He played truant or stayed
out late or overnight to do both. He carried on his work life with the
same attitude. In order to make money for his pleasure-seeking, he
committed the present offence.
The sentencing principles
Prison or the training centre
5. Section 109A of the Criminal Procedure Ordinance, Cap. 221,
provides:
(1) No court shall sentence a person of or over 16 and under 21 years
of age to imprisonment unless the court is of opinion that no other
method of dealing with such person is appropriate; and for the purpose
of determining whether any other method of dealing with any such
person is appropriate the court shall obtain and consider information
about the circumstances, and shall take into account any information
before the court which is relevant to the character of such person and
his physical and mental condition.
(1A) This section shall not apply to a person who has been convicted of
any offence which is declared to be an excepted offence by Schedule 3.
The offence of trafficking in dangerous drugs is under section 4 of the
Dangerous Drugs Ordinance, Cap. 134, an excepted offence by Schedule
3.
Prison sentence guidelines
6. On 6 June 2008 the Court of Appeal laid down sentencing
guidelines for trafficking in ketamine in SJ v Hii Siew Cheng CAAR
7/2006 in place of HKSAR v Lee Tak-kwan [1998] 2 HKLRD 46. As the
2
present offence took place on 9 July 2008, SJ v Hii Siew Cheng is
applicable. The scale of imprisonment is as follows:
(1) Up to 1 gramme – discretionary;
(2) Between 1 and 10 grammes – 2 to 4 years;
(3) Between 10 and 50 grammes – 4 to 6 years;
(4) Between 50 and 300 grammes – 6 to 9 years;
(5) Between 600 and 1,000 grammes – 12 to 14 years;
(6) Over 1,000 grammes – 14 years or more.
7. The present case concerns 29.43 grammes of ketamine. It falls
within 4 to 6 years.
Prison sentence and the offender’s youth
8. In re Applications for Review of Sentences [1972] HKLR 370,
Leonard J, at 417 reiterated the view that:
It is true that the personality, youth or personal circumstances of the
offender may pale into insignificance because of the magnitude or
prevalence of the offence in question.
9. In R v Chung Man-kit [1990] 1 HKC 87, the applicant was between
20 and 21 when he committed 12 robberies, all in the lift and of lone
females. A paper cutter was used to intimidate and, in two cases, to cause
minor injuries to the victims. He had a string of previous convictions
including common assault, assault occasioning actual bodily harm,
possession of dangerous drugs and possession of dangerous drugs for the
purpose of unlawful trafficking. He had been given probation,
reformatory school order, Drug Addiction Treatment Centre order, and
suspended sentence. The suspended sentence was still operative when he
committed the 12 robberies. He was sentenced to a concurrent term of 9
years for all charges. The Court of Appeal reduced it to 7 years.
10. In dealing with the submission in mitigation that the youth of the
applicant had to be given sufficient weight, Silke V-P observed, at para. 9:
On this last submission it was made clear in a number of cases, in
particular The Queen v. Kwok Man Hung and Others, Criminal Appeal
17 of 1983 (unreported) and The Queen v. Chan Chi Fai and Others,
3
Criminal Appeals No. 593 and 643 of 1983 (unreported) that where a
series of robberies is concerned the youth of those who commit them is
not a strong mitigating factor. As was said, and as is apposite to the
offences here, in The Queen v. Chan Chi Fai at page 4:
"This type of offence is unfortunately a very common one. The youth of
applicants appearing in this Court, and of defendants at trial, is of
course of very grave concern. But we feel where there is a multiplicity
of offences of this nature that the public interest must be served over
and above the individual interests of the applicants despite their youth."
11. In Secretary for Justice v Ko Fei-tat [2002] 4 HKC 59 which
concerned trafficking in dangerous drugs, Stuart-Moore VP said at paras.
23 to 25:
23. We are in no doubt, as this court said in Attorney General v Suen
Yuen-ming [1989] 2 HKLR 403, that save in "very rare cases", a
training centre order for trafficking in substantial quantities of
dangerous drugs should not be imposed. In that case, the exceptional
circumstances found by the court to have justified the making of a
training centre order included the fact that the respondent had been
threatened that if he did not comply with a demand that he should store
the drugs in question, his girlfriend would be harmed and the family's
cooked food stall business would be disrupted, mitigation which had
been accepted by the first instance judge. (It is to be noted that this
case was decided before the amendment in 1994 to section 109A to
include trafficking in dangerous drugs as an 'excepted' offence.)
24. Exceptional circumstances, which are somewhat elusive, were also
found in Attorney-General v Kong Kin-man [1997] HKLRD 350, where
the headnote at (2) reads:
"(2) Age, whether youth or old age, carried little weight in drug
trafficking offences. It was only in rare cases that detention in a
training centre was appropriate on a conviction for drug
4
trafficking (A-G v Suen Yuen Ming [1989] 2 HKLR 403 followed).
There was a considerable public interest involved in showing by
deterrent sentences that the courts would treat drug trafficking
most severely."
25. In that case, where a District Court judge had made a detention
centre order for trafficking in a mixture containing just over 13 grammes
of heroin, the court found, when substituting a training centre order,
that there were no indications of the respondent having embarked on a
calculated course of criminal conduct and that it was more a case of a
young man "momentarily coming under the influence of a more
experienced companion".
The training centre
12. Section 4(1) of the Training Centres Ordinance, Cap. 280, provides
Where a person is convicted of an offence punishable with
imprisonment, then if on the day of his conviction he is in the opinion of
the court not less than 14 but under 21 years of age, and the court id
satisfied that it is in the interest of the community and that having
regard to his character and previous conduct and to the circumstances
of the offence, it is expedient for his reformation and for the prevention
of crime that he should undergo a period of training in a training centre,
the court may, in lieu of any other sentence, pass a sentence of
detention in a training centre.
13. Section 4(2) provides:
A person sentenced to detention shall be detained in a training centre
for such period, not extending beyond 3 years from the date of his
sentence, as the Commissioner may determine, and shall then be
released:
5
Provided that the Commissioner shall not release any such person
before the expiration of 6 months from the date of his sentence, unless
required to do so by direction of the Chief Executive.
14. In Wong Chun-cheong v HKSAR (2001) 4 HKCFAR 12, at 24
Riberio PJ summarized the proper approach of a court to the making of a
training centre order:
(1) The court should first be satisfied that the threshold requirements
are met, ie, that the offence is punishable with imprisonment, and that
the offender is aged between 14 and 21.
(2) The court should then consider whether in the case at hand, the
interest of the community requires that the rehabilitative approach
should give way to a punitive or deterrent sentence. If so, the training
centre option should not, save in exceptional cases, be adopted.
(3) Where the circumstances of the offence are such that a training
centre order would be too lenient, the court is entitled to reject that
option notwithstanding that the offender would otherwise be regarded
as a suitable candidate for training.
(4) Similarly, where the offence committed is minor and would not
otherwise call for a custodial sentence, detention in a training centre
would, save in exceptional cases, be inappropriate, notwithstanding the
offender’s suitability as a candidate for training.
The sentence I pass
15. On the one hand, if I have to consider a prison term based on the
present facts, an offender aged over 21 is likely to face 5 years’
imprisonment as a starting point, to be reduced to 3 years 4 months on a
plea of guilty. The authorities suggest that a young trafficker of
dangerous drugs is not likely to get much credit for his age (re
Applications for Review of Sentences; R v Chung Man-kit).
16. On the other hand, when considering the suitability of the training
centre, regard has to be had to the four factors raised by Ribeiro PJ in
6
Wong Chun-cheong v HKSAR. Applying them to the present facts, it will
be seen that:
(1) The offence is punishable with imprisonment, and that the offender
is aged between 14 and 21.
(2) The interest of the community requires that the rehabilitative
approach should not give way to a punitive or deterrent sentence.
(3) The circumstances of the offence are not such that a training centre
order would be too lenient.
(4) The offence committed is not minor and would call for a custodial
sentence.
17. As the present offence is an excepted offence, section 109A of the
Criminal Procedure Ordinance, Cap. 221, which provides that a prison
term must only be kept as a last resort, is not mandatory. The court may
impose a prison term even if it is not the last resort.
18. According to the Training Centre Report, he is mentally and
physically fit. From the information available and after a general
assessment of his behavior and attitude, he is deemed suitable for
detention in a Training Centre.
19. In my view, the Defendant is going down on the fast track. He still
stands a chance if he is guided back in time, and the present instance is no
doubt a prime time to do so. Saving him will also be in the interest of the
community. With an appraisal that a training centre order is a lighter, if
not exceptional, option in the present case, I make it the present sentence.
20. He was bound over for common assault in 2008. It is still
operative but I do not propose to make any order on it.
Eddie Yip
Deputy District Judge
7