HKSAR v. Yeung Hong Fu

DCCC 68/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 68 OF 2017

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Reasons for Sentence

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1.The defendant has pleaded guilty to a single charge of trafficking in a dangerous drug. The actual narcotic content we are dealing with here is 10.7 grammes of ketamine and 0.14 grammes of cocaine. That is a total of 10.84 grammes of narcotic.

2.The facts are very straightforward.  In the late hours of 28 October 2016, police officers were carrying out an anti‑crime patrol in Sham Shui Po.  They saw the defendant acting furtively and decided to search him.  He had a shoulder bag, and from the shoulder bag was found a plastic bag which contained a transparent resealable plastic bag containing a further resealable plastic bag in which the 10.7 grammes of ketamine was found.  There was a further transparent resealable bag, which again contained another resealable bag in which the quantity of 0.14 grammes of cocaine were found.

3.The defendant said simply he was helping others to carry the things.  He was doing it for a return of $1,200, and was not a consumer himself.  He was subsequently subjected or took part in a video-recorded interview in which he gave details of how he came to be in possession of the drug and the procedure by which it would be sold.

4.The defendant accepts that he possessed both the drugs - ketamine and cocaine - for the purpose of unlawful trafficking in them.

5.As far as the defendant’s antecedents are concerned, he is currently 17 years old.  He is of clear record in Hong Kong. At the time of the commission of the offence he was 16 years and 10 months old.

6.As far as his background is concerned, he comes from the mainland and was brought here shortly after his birth.  His father is a construction site worker, but is divorced from his mother.  His mother has suffered from breast cancer in the past.  At the time of his arrest, the defendant was residing with his mother in a public housing unit in Shatin.  She works as a restaurant waitress.

7.The defendant received primary and secondary education in Hong Kong and finished Form 4 education in July, 2016.  In September 2016 he enrolled in a diploma course in Kwai Chung run by the vocational training council, and was, at the time of his arrest, a full-time student.

8.As is apparent from the other antecedents, he is of clear record.  He is neither a drug addict, nor has any association with triad societies.

9.I turn to the principles to be adopted in sentencing a person such as the defendant.  Clearly, possession for the purposes of trafficking these particular drugs, ketamine and cocaine, are governed by guideline sentencing, which is largely determined by the quantity of the narcotic the defendant is found in possession of.

10.We have two drugs here.  For ketamine, the operative guideline would be for between 10 to 50 grammes of narcotic, the sentence would be between 4 to 6 years’ imprisonment.  For trafficking in the other drug, cocaine, the operative guideline is between 2 to 5 years’ imprisonment.  This is what is described as a combination, or a cocktail, of drugs, but in this case there is only a small quantity of cocaine, and added together, would bring the total narcotic up to 10.84 grammes of narcotic.

11.I consider the appropriate starting point, if I were to determine this to be a case in which a prison sentence is the correct approach, given the defendant’s young age at the time of committing the offence and his clear record, the starting point for sentence in this combined quantity of drug would be one of 4 years’ imprisonment.  The defendant would, of course, be entitled to a one-third discount from that figure because of his early indication of plea.

12.The other principle of sentencing that I have to consider in relation to this particular defendant is that he is what could be described as a young offender, aged only 16 years and 10 months at the time of the commission of the offence, and section 109A of the Criminal Procedure Ordinance says that no court should 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 a person is appropriate.

13.When one considers offences involving trafficking in dangerous drugs, of course, the courts have borne in mind that such offences are often committed by people who are young, and they are recruited by traffickers because it is thought that a more lenient approach to sentence may be adopted in those particular cases.

14.The case as recently as 2015, which is Secretary of State v Chau Tze Tim [2015] 1 HKLR says that:

“Drug trafficking is an evil business. Those involved, irrespective of their backgrounds or the circumstances of the offence could expect no mercy. For serious drug trafficking cases, the public interest requires the deterrence of potential offenders must take precedence over the rehabilitation of the particular defendant. In this case, it was not in the community interest to sentence even young offenders to a training centre save in exceptional circumstances. A training centre order did not constitute a deterrent sentence.”

In this case, they referred to D1 and D2, being well over 17 and 18 at the time of their respective offences, were not of extreme youth. Their relatively young age paled into significance - it should be “insignificance” - because of the magnitude of the offences. The defendants trafficked drugs out of greed to make easy money, apparently influenced by their triad connections. There were no exceptional circumstances which justified a training centre order. In their cases, training centre orders were unduly lenient and fell outside of the range of sentence the judge, applying his mind to all the relevant factors, could reasonably consider appropriate. The only proper sentence was immediate imprisonment. Given the defendants’ relatively young ages - and this is a review of sentence - the proper starting point for each of the defendants was 6 years. “I reduce, for plea, the final sentence to one of 4 years’ imprisonment”.

15.Actually, when looking at that case, one observes two factors.  Firstly, the defendants had different backgrounds from this defendant.  They were older, but not much older, and they were trafficking in what must have been a much larger quantity of drug for the starting point to be one of 6 years’ imprisonment.  So the case is of relevance and significance in the approach I must take, but of course it can be distinguished for this defendant.  This defendant was 16 years, 10 months, when the offence was committed.  He was of clear record.  He has no triad association.  He would appear to be a naïve and foolish young man.  Also, he was trafficking in a smaller quantity of drug.  A further factor that I may bear in mind when determining the sentence for this defendant is the difference between the proposed prison sentence and the actual rehabilitative sentence that is recommended to me.

16.I turn to the training centre suitability report.  This has looked closely into the defendant’s background.  It says the defendant committed the offences out of greed for money and a weak law-abiding concept.  He started drug peddling activities in mid‑October 2016.  The defendant admitted he committed the offence out of greed for easy money and weak law‑abiding concept.  Upon probing, he admitted that all his earnings from his illegal activities was spent upon entertainment.  He said he had never taken any dangerous drugs.  He is described as having superficial remorse at that stage.

17.The conclusion is the defendant had, after entering Form 3, indulged in playing online games where he occasionally played with peers of triad background.  Mingling with dubious peers, he turned rebellious and was out late at night.  He had an air of delinquency and internalised deviant values.  His mother had no idea about what had happened to him and his waywardness.  He kept his mother in the dark and participated in drug-peddling activities from mid‑October on several occasions.  His imprudence in choosing friends and the greed for easy money dragged him into trouble with the law, and he was arrested in late October 2016.  He was remanded in gaol custody until mid‑December 2016.  The defendant is mentally and physically fit for detention in training centre.  After a general assessment of his behaviour and attitude whilst on remand, he is considered suitable for detention in a training centre.

18.I consider the defendant is what I call in a marginal category as far as sentence is concerned.  I take into account the length of time that may well be served by this defendant were he subjected to a prison sentence.  A starting point of 48 months’ imprisonment would lead to a sentence of 32 months’ imprisonment.  That, of course, is subject to remission were the defendant to behave himself, and most people do.  The remission can be up to a further third of the operative sentence.  This is bringing the defendant’s sentence down into the low 20s of months.  He has also been in prison on remand for almost 2 months; whereas the proposed sentence from the Correctional Services Department of training centre ranges between 15 to 18 months of corrective training.  This is subject, of course, to a further period in which the defendant would be under supervision by the authorities.

19.So the alternative I have is to sentence the defendant to a sentence of imprisonment which is not greatly in excess of what he would serve at a training centre, and where he would be released with no after‑care supervision and have no training.  If the defendant was sentenced as proposed by the Correctional Services Department, he would be subject to corrective training for a substantial period of time, and would be subject to supervision afterwards.  It would take, one would hope, that this particular sentence would rehabilitate this defendant and reduce the risk of his reoffending in the future, which would be, of course, of benefit to society itself.

20.Balancing all these considerations, when looking at this particular defendant for this particular offence, I consider that his situation is exceptional.  The offences are serious.  He has pleaded guilty. He is remorseful.  But he has some factors in relation to sentencing that put him into a category of what I can describe as exceptional.

21.For those reasons, I will impose a training centre order on this defendant.  That will be the sentence of the court.