HKSAR v. Chan Yik Chung, Felix

DCCC 511/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 511 OF 2017

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to a charge of trafficking dangerous drugs, namely, 23.8 grammes of a solid containing 21.4 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

Summary of facts

2.At about 2305 hours on 7 March 2017, the defendant was intercepted for a search and one resealable plastic bag containing one resealable plastic bag containing 21.4 grammes of cocaine was found inside the front pocket of defendant’s sweatshirt.  The defendant was arrested for trafficking dangerous drugs.

3.Under caution, defendant said that it was his first time to handle “coke”.  Two Apple iPhones, HK$44.5, RMB23 and one key were also found from him.

4.During a house search, one electronic scale, 400 empty resealable transparent bags were found inside defendant’s bedroom.

5.Under caution, defendant admitted that :-

a. he intended to repack the dangerous drugs into 110 bags, with each bag containing 0.2 grammes’ solid, and would wait for instructions for distribution.

b. On 3 March 2017, defendant met Ah Tsun in Shenzhen and agreed to earn quick money.

c. On 7 March 2017, Ah Tsun called him to buy one electronic scale and some resealable plastic bags.

d. On 7 March 2017, upon instructions from Ah Tsun, he went to Tong Ming Street, where he met an unknown man who gave him a bag of dangerous drugs in question. Ah Tsun promised him to remunerate him with $1,000 for each job.

6.The estimate retail price of the cocaine is HK22,539.

Previous conviction

7.The defendant has a clear record.

Mitigation

8.The defendant is 18 years of age.  He suffered from attention deficit and hyperactivity disorder and has asthma problem.  His mother suffered from depression since 2001, while his father suffered from back pain since 2014 and could not work since then.  His elder brother has become a monk in March this year.  The defendant was a kitchen worker before his arrest, earned about $15,000 per month, and contributed half of his earning to his family.

9.There are a number of letters from his family members and others to mitigate on his behalf.  Some of them are also in court today to support him.

10.Finally, it was submitted on his behalf that he has a clear record; he has been co-operative throughout.  In view of his young age, counsel urged this court to adopt a lower starting point for his sentence.

Sentence

11.I have the opportunity to read all the letters from the defendant’s family members, social workers and teachers from his former school.  From those letters, I come to know that the defendant is a very sporty person.  He is good at sports.  He is willing to help others.  There are also certificates to prove that he had attended some voluntary work to help the elderly. 

12.The defendant is a young man with clear record and some of them are totally shocked to learn that he had committed the present offence.  The reason for him to commit the present offence was to raise money for his 18-year-old girlfriend to pay for her cosmetic surgery fee.

13.Nonetheless, they all pleaded leniency on his behalf.

14.A handwritten letter of mitigation by the defendant was also produced to this court.  The letter stated that he had reflected on his circumstances.  He was very remorseful and promised to behave in the future, and he would take the opportunity to finish his study in prison.

15.Since his brother has become a monk this year, he asked for early release so that he could take up the responsibilities to look after his parents.

16.Counsel mitigating on his behalf agreed that there was no need to call for any report before sentencing.

17.Section 109A 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 the opinion that no other method of dealing with such person is appropriate...”

18.While this provision does not apply to trafficking in a dangerous drugs, which is an exempted offence.

19.In Secretary for Justice v Chau Tsz Tim [2015] 1 HKLRD 853 and also in a recent authority, HKSAR v Li Leung Fai, CACC 74/2017, the court reaffirmed the sentencing principle that it was only in very rare cases where there were exceptional circumstances that a training centre order would be appropriate for a trafficking offence involving a substantial quantity of dangerous drugs.

20.As said in SJ v Ko Fei Tat [2002] 4 HKC 59, that young age carries little weight in mitigation because there is a need for deterrence when dealing with offences like trafficking in a dangerous drug.

21.Notwithstanding the defendant’s young age, I am satisfied I can proceed to sentence today without calling for any reports.

22.When passing sentence, I bear in mind all the mitigating factors advanced by the defence.  I also have regard to the relevant sentencing guidelines set down by the Court of Appeal in R v Lau Tak Ming & Ors [1990] 2 HKLR 370: where the quantity of narcotic is simply between 10 and 50 grammes, sentence falls within the range of 5 to 8 years.

23.In the present case, the quantity of the drugs was 21.4 grammes of cocaine.  The appropriate starting point will be 6 years.

24.Taking into account the defendant’s young age, I adopt a reduced starting point to 5 years and 9 months. 

25.Reduced one-third because of his guilty plea, it comes down to 3 years 10 months.

26.Finally, I note that the defendant had done some voluntary works before, but they were of minor nature such as helping the elderly to wrap rice dumplings, therefore do not justify any reduction of sentence.

Order

27.A sentence of 3 years 10 months.