HKSAR v. Lam Hon Cheung

DCCC 902/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 902 OF 2015

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REASONS FOR SENTENCE

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INTRODUCTION

1.On 10 March 2016, the defendant was convicted, on his own plea, of one charge of trafficking in a dangerous drug, preferred against him under section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. 

FACTS

2.On the evening of 14 July 2015, two police officers on anti-narcotics duty saw the defendant acting furtively at Wan Tau Tong Estate, Tai Po.  When the defendant followed residents to go into the lobby of Wan Hang House, the officers took action and intercepted him.  In the defendant possession, namely his left, front trouser pocket, were found six packets, wrapped in tissue, containing what was subsequently found to be a solid weighing 161.4 grammes containing 33.33 grammes of ketamine.  The defendant was arrested for trafficking in a dangerous drug; under caution, he said the “K Chai” was for his own use.  Cash in the sum of $2,525 was also seized from him. 

3.The defendant admits in court that he has had the ketamine at the time of the offence for the purpose of trafficking in it.

MITIGATION

4.The defendant, a person of previous good character, was born in April 1995 and was, at the time of his conviction (and still is) under 21.  He has received education up to Form Six level and, according to the Antecedent Statement, has been unemployed since March 2015.  He lives with his parents – his father working as a bus driver, his mother a waitress – and his elder sister who is a university student.

5.In her plea in mitigation, Ms Cindy Lee appearing for the defendant explains that the defendant used to work as a transport worker on a casual basis and he resigned in March 2015 in order to look for full-time employment.  With respect to the subject offence, Ms Lee submits that the defendant was promised $500 as a reward to deliver the ketamine to others; subsequent to his arrest, he has shown full remorse by offering to assist the police, but his offer was rejected. Ms Lee relies on the mitigation letters of the defendant himself, his parents, his elder sister, his cousin, and a pastor of a church.  In gist, the defendant stresses he has committed the subject offence due to financial reasons and that he is remorseful; his parents, separated for some time, blame themselves for failing to keep an eye on him; his sister and cousin consider him a responsible member of the family and a source of happiness to others.   

6.Ms Lee submits that for the quantity of narcotic concerned, a starting point in the region of five years and three months’ imprisonment seems inevitable.  She mentions in passing a case in which it was held that a Training Centre Order was inappropriate for the offence of trafficking in dangerous drugs, and she asks the court to be as lenient as possible in sentencing the defendant.   

7.According to the Training Centre Suitability Report, the defendant’s parents separated in 2011, resulting in a relaxation of parental supervision on the defendant.  In consequence, he hanged around with undesirable peers and eventual turned wayward.  Since leaving school in July 2013, he has worked intermittently as a waiter, a delivery worker, a financial planner, and a warehouse attendant; his last job was as a decoration worker, making a daily wage of $800.  In terms of life-style, he frequented bars, snooker lounges and amusement games centres, and he lingered in public playgrounds.  When he was unable to pay for his expenses, he assisted his triad peers to collect debts and, in the end, became a drug peddler.  He told the Rehabilitation Officer of the Correctional Services Department that he has committed the subject offence due to greediness.  In his remand, he has managed to comply with institution rules and regulations.  Detention in a training centre is recommended.   

CONSIDERATION

8.The Court of Appeal in SJ v Hii Siew Cheng[1] held that the appropriate sentence, after trial, for trafficking in 10 to 50 grammes of ketamine should be four to six years’ imprisonment.  In the present case, for the quantity of narcotic concerned, a prison term slightly in excess of five years is warranted.

9.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 is 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 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.” (emphasis supplied)

10.An important observation can immediately be made.  In most situations, a sentencing court should pay heed to an offender’s circumstances as of the date of his sentence.  However, for detention in a training centre, so long as he has not reached 21 upon conviction, that sentencing option remains open even though – at the time of his sentence – he has reached 21 (or, theoretically speaking, is well past that age).  Looking at the provision in that light, age as a criterion for detention in a training centre is more qualifying than disqualifying in nature.  It is the court’s view that so long as an offender falls within the eligible age bracket upon his conviction, this sentencing option should never be lightly dismissed simply because he is edging towards the upper end of the qualifying age range.

11.In SJ v Lau Shing-kit[2], a 17-year-old defendant pleaded guilty to one count of trafficking in 183.99 grammes of ketamine and was sentenced to detention in a training centre.  Upon application by the Secretary for Justice for a review of sentence, the Court of Appeal said:

“12. The judge noted that Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1 set guidelines for trafficking in ketamine of 6 to 9 years’ imprisonment for a quantity between 50 and 300 g. In relation to the appropriate starting point were a term of imprisonment to be imposed, he took the view that in the respondent’s case the appropriate starting point would be at the bottom of the tariff band, namely, 6 years’ imprisonment. That may at first appear surprising since the guideline would suggest a starting point in the range of 8 years’ imprisonment for the quantity of drugs in the case …

17. With great respect to the conscientiousness of the judge and acknowledging the unusual fact which he faced of a defendant who had just emerged from about five months’ incarceration in a detention centre, we were nonetheless of the view that the judge erred. True it is that the bands are not entirely mathematical in the sense that there is room for manoeuvre within them according to the circumstances of the case, but the room for manoeuvre in this case was not so great as permit an adjustment down from 8 to 6 years, especially having regard to the serious fact that the offence was committed whilst on bail. If a 6 year starting point would have been generous given the quantity of drugs, a 6 year point before plea after taking into account the aggravating factor of an offence whilst on bail, would have been clearly too generous. …

18. Whilst we acknowledge a certain discomfort at the notion of sending an offender to prison immediately upon the termination of a period in a detention centre, that discomfort must yield to the nature and gravity of the fresh offence. If the fresh offence is not of such a serious nature as to demand a substantial term of imprisonment, an imaginative sentencing approach of the type upon which the judge embarked is acceptable. If on the other hand the fresh offence is, by reason of its facts or by reason of sentencing policy attaching to its category, such as to require a lengthy term of imprisonment, then a term of imprisonment should be imposed.” (emphasis supplied)

12.It is immediately clear that the offence committed by the defendant in SJ v Lau Shing-kit[3]was far more serious, and the attending facts and circumstances for the consideration of the sentencing court were far more complicated, than the instant case.    

13.When dealing with young offenders, the Court of Appeal has stressed in HKSAR v Wong Tsz Hin[4]that “[i]n view of the applicant’s young age and clear record and for the sake of the community, it is of importance that the applicant should be rehabilitated and a long term imprisonment may not be the best answer for his rehabilitation.” (emphasis supplied)  In the sentencing process concerning young persons, in particular, fresh offenders, the issue of rehabilitation must wherever possible be given due weight; a prison term should in the court’s view be reserved as the very last option.

14.In this regard, section 109A(1) of the Criminal Procedure Ordinance, Cap 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 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.”[5]

15.Detention at a training centre cannot be described as a lenient sentence.  The maximum period of deprivation of liberty there is one of three years, and there is a statutory period of post-release supervision of three years.  In the instant case, having regard to the interest of community and the defendant’s character and physical and mental condition, compared with a prison term of comparable, effective duration, a Training Centre Order is the more appropriate sentence to be imposed on him.  Such a detention order is conducive to the defendant’s reform, which would reduce the chances of his re-offending, and which would enhance the prospect of his smooth return to the community as a law-abiding and contributing member.   

16.In all the circumstances of this case, a Training Centre Order would sufficiently address the general sentencing criteria of punishment, retribution and deterrence.

CONCLUSION

17.For the offence of which he stands convicted, the defendant is sentenced to detention at a training centre.