HKSAR v. Tsui Wai Lam

DCCC 929/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 929 OF 2016

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Reasons for Sentence

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1.In this matter the defendant has pleaded guilty to one offence of trafficking in a dangerous drug.  This was committed on 13 July and the narcotic quantity of the drug concerned is 19.20 grammes of cocaine.  The facts of the case as admitted by the defendant are simple and straightforward.

2.On the evening of 13 July 2016 the defendant was stopped and searched at a cyber café in Cheung Sha Wan.  The drug was found in a plastic bag in the left front pocket of the defendant’s jeans. The defendant immediately admitted he was keeping the cocaine for a friend and would give it back later.  The defendant made a further video-recorded interview and expanded upon his original admission.  He had kept the cocaine for a friend called ‘Lai Yuen’ and was going to be a $1,000 for doing that.  He was given the drug by a friend of the person called Lai Yuen but he was to hold onto it until he received a call.  He was paid a $1,000. 

3.It was agreed the value of this cocaine was $36,000‑odd.

4.As far as this defendant is concerned he is now a 19 year old male, received Form 3 education in Hong Kong and was unemployed at the time of his arrest.  He has no previous criminal record.  He is in good health.  Because of the defendant’s young age and clear record I obtained further reports on him to consider if any other way of disposing of him other than an immediate custodial sentence could be envisaged in this case and I obtained a Background report and a Training Centre report. 

5.The Background report shows the defendant was raised in what is described as a harmonious family.  In his teenage years he was involved with what is described as dubious peers.  He had been working since the age of 15 with a shifting job pattern.  He committed this offence for a desire for quick money. 

6.The Training Centre report shows that the defendant is in their view in need of disciplinary training.  Commission of the offence is due to greediness and immaturity.  The conclusion is the defendant has weak self-control ability and has a poor law-abiding concept.  It is said a period of disciplinary training coupled with statutory supervision would be beneficial for his reformation.

7.Turning to the issue of the appropriate sentence.  As far as the offence is concerned, it is acknowledged by all to be a serious offence.  An immediate custodial sentence is the normal appropriate sentence.  This would be so even for a young person.  The defendant is an adult, although immature. 

8.The possession for the purpose of trafficking in a drug in this quantity is governed by guideline sentencing. The drug here I am concerned with is cocaine.  That is subject to the guidelines for heroin as set out in Lau Tak Ming where the quantity of drugs that lies between 10 to 50 grammes of narcotic a sentence of between 5 to 8 years can be expected.  The quantity of 19.20 grammes would of course put it at the lower end of that scale.  That, combined with the defendant’s clear record and his relatively young age and the limited role in the hierarchy of drug trafficking the defendant has in this case would again place any starting point for sentence towards the bottom of that guideline.  So were a sentence of imprisonment to be adopted the sentence would be in the range of 5 years’ imprisonment or in the range of 60 months.  That would be subject to a one-third discount for the defendant’s plea of guilty and of course beyond that the defendant would expect to also receive remission on that sentence.

9.Now the alternative sentence for this defendant would be the sentence as recommended by the Correctional Services Department which is a sentence of Training Centre.  Now the benefit of a sentence for Training Centre for the defendant would mean that he would receive disciplinary training which he is in great need of because of his immaturity and weak law‑abiding concept.  It would also provide the community with some reassurance in that on release from the Training Centre program he would be subject to supervision.  Furthermore, the Training Centre program is not a soft option as it involves disciplinary training. Also, it is not for a limited period, a normal length of training can be up to 18 months. 

10.I also note in this case the defendant has been in custody since July of last year.  Of course that period of detention would not count towards the serving of the Training Centre program which would be, if the defendant is sentenced to a Training Centre, that period of imprisonment would be of course an additional period of punishment. When those periods are added together it would not be radically different in length than the period the defendant could expect to serve by way of a sentence of imprisonment, a sentence of imprisonment imposed in respect of the normal guideline. In this situation it appears to me that the court does have a realistic option to sentence the defendant in another way other than immediate custodial sentence and that arises because of a full consideration of the operation of the guideline. 

11.I am satisfied the Training Centre program combined with the period already served would act as a deterrent to the defendant and the existence of training and also supervision would at least put in place a system which would mean the defendant would be unlikely to reoffend.

12.On balance and for the reasons that I have elucidated, I consider that the appropriate sentence for this defendant in this case is one of Training Centre and that is the sentence I will impose.