HKSAR v. Wong Ming Shek, Richard

HCCC 183/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 183 OF 2017

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to a single offence of trafficking in a dangerous drug at the earliest opportunity in Eastern Magistrate’s Court on 29 May 2017. He was committed for sentence to this Court.

2.The agreed facts giving rise to the offence can be summarised as follows.  At around 23:45 hours on 9 November 2016, the defendant was intercepted by police officers.  He was escorted to his residence where a search was carried out by the police officers pursuant to a search warrant.  They searched a bedroom which was shared by the defendant and his father in which they found a black paper box containing four plastic bags of cocaine, an electronic scale on top of a cabinet and a ceramic box containing a small plastic bag of cocaine inside the cabinet.  It was later confirmed that the five plastic bags containing the drugs consisted of 89.44 g of a solid containing 69.65 g of cocaine.  The estimated retail value of the drugs was about HK$150,000.

3.In a subsequent video recorded interview, the defendant in the presence of his elder sister, stated that the cocaine seized from his bedroom was stored there temporarily upon the request of a male friend, with whom he had only recently become acquainted.  He met his new friend at a bar and thereafter his friend would call him daily.  His friend requested him to collect “some stuff” for him for which he would be rewarded with about HK$4,000-$5,000.  He said his male friend had requested him to go to a park at Wang Toi Shan and contact another male to collect the five bags in question. He did so, and kept the bags at his home which he was later to deliver to his male friend.  He said he suspected that the stuff were dangerous drugs and thought about reporting the matter to the police but considered it troublesome. 

4.The defendant now admits and accepts that he was trafficking in the drugs seized at his residence.

5.The defendant was born on 16 February 2000.  At the time of the offence, he was 16 years of age, and living with his parents and elder sister in Tin Shui Wai, New Territories.  From the information at hand, it appears that the defendant has mixed with bad company and has got himself into trouble with the law.  He was given a Superintendent’s warning in April 2016 for a common assault that occurred in April 2015.  He has prior convictions for two lots of offences which were dealt with together on 5 April 2017.  One lot involves two charges of acting as a member of a triad society and one charge of claiming to be a triad member which occurred in May 2016.  The other lot involves one charge of wounding which occurred in November 2016 (a week before this offence).  He was sentenced on each of the charges to attend a detention centre.  A detention centre order is geared to deal with a young offender by providing a programme that seeks to instil a respect for the law and a respect for one self by appropriate discipline and training.  Unfortunately, this will have to be interrupted as he has subsequent to these offences committed the more serious offence of trafficking in a dangerous drug. 

6.I have had submitted to me letters from the defendant’s mother, elder sister and the community youth leaders who all speak highly of the defendant.  He was indeed a promising young person destined to do well in his future life.  He was doing very well at school and actively participating in a variety of social programmes for which he was given merit certificates for his contributions and achievements.  His mother informs me that he has mixed with bad company who have been a bad influence on him.  She talks of her sorrow and extreme pain “watching our well-behaved son slowly turning into a rebel”.  His sister who also gave evidence before me mentions that he was a responsible brother who cared for others but unfortunately slowly changed.  She said “I still believe that someday he will change back to the considerate and lovely brother that he once was”. 

7.I accept that the defendant is a young person who showed a lot of promise and unfortunately has allowed himself to be influenced by a bad element. 

8.It is in the interests of the community for a young person to be steered away from crime and not into it, so when a court is dealing with a young offender it needs to strike a balance between the competing demands of proportionate punishment and reform of the offender. However, when the crime concerned is serious, only limited weight can be placed on the youth of the offender.  In R v Lau Tak Ming [1990] 2 HKLR 370, at 386G, the Court of Appeal did acknowledge, in setting the general tariffs applicable to trafficking in dangerous drugs, that extreme youth may call for special consideration.  This is an exceptional circumstance and not generally available to someone older than 15 years of age.  It will obviously require careful consideration of the circumstances both of the offence and of the offender.  It is generally acknowledged that the youth of an offender dealing in narcotics will carry little weight, if any at all.  See HKSAR v Abdallah [2009] 2 HKLRD 437, at paragraphs 32 and 33.

9.I am prepared to accept in the circumstances of the present case that the defendant has been led astray by the influence of others, and together with his immaturity of youth, has committed this crime.  I am of the view that in the special circumstances of his case, rehabilitation of him is a matter of importance which warrants greater emphasis when passing sentence.  In light of the seriousness of the offence and the sentencing guideline cases, a term of imprisonment is warranted.  

10.Cocaine and heroin are equated for sentencing purposes and the tariffs as fixed for heroin in R v Lau Tak Ming [1990] 2 HKLR 370 apply to cocaine.  This was confirmed in AG v Pedro Nel Rojas [1994] 1 HKC 342.  According to the sentencing guidelines for the quantity of narcotic content involved of 69.65g of cocaine, the defendant is in the band of 50 to 200 g, where the guideline starting point for traffickers after trial, subject to any enhancement, is 8 to 12 years’ imprisonment.  I will therefore adopt a starting point of 8 years and 6 months’ imprisonment which I will reduce by one third for the defendant’s guilty plea to 5 years and 8 months’ imprisonment.  As I have mentioned, I am of the view that there are special circumstances in the defendant’s case, as highlighted by his background and youth, that warrant a further reduction in sentence in order to serve the desirability of rehabilitation.  I will reduce his sentence to 3 years and 8 months’ imprisonment. 

11.I note that the defendant is currently serving a detention centre order.  In accordance with section 7 of the Detention Centres Ordinance, Cap 239, such an order will lapse if the person is sentenced to a term of imprisonment which is not suspended. 

Ms Lily Yip, SPP of Department of Justice, for HKSAR

Mr Kwan Tong Lee, instructed by Sit, Fung, Kwong & Shum, assigned by Director of Legal Aid, for the defendant