HKSAR v. Cheung Pak Long and Others

DCCC 627 & 1068/2017

[2018] HKDC 561

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 627 & 1068 OF 2017

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REASONS FOR SENTENCE

1.D1 pleads guilty to seven charges of trafficking in a dangerous drug (charges 1-7), contrary to section 4 of the Dangerous Drugs Ordinance[1]. D2 pleadsguilty to one charge of trafficking in a dangerous drug (charge 2)[2].

2.D6 stands convicted after trial of one charge of trafficking in a dangerous drug (charge 6)[3].

3.Full particulars of the offences are set out in the facts admitted by D1 and D2 on 13 April 2018 and in my reasons for verdict in respect of D6 delivered on 2 May 2018. 

4.In summary between August and October 2016 PC 12205 and PC 18104 acted as undercover police officers in a dangerous drugs operation in the Yuen Long area to combat drug trafficking.  On 8 August 2016 PC 12205 and PC 18104 made the acquaintance of D1 in the Moses Bar in Yuen Long. 

5.On seven occasions between 18 August and 24 September 2016 D1 sold dangerous drugs or arranged the supply of dangerous drugs to PC 12205 and PC 18104. 

6.On 18 August 2016 D1 sold PC 12205 three packets containing 0.58 gramme of cocaine for $1,100 (charge 1). 

7.In the early hours of 20 August 2016 D1 arranged for PC 12205 to be supplied with 3.5 grammes of ice for $1,000.  After D3 agreed with D1 to supply the ice to PC 12205, D1 took the undercover police officers to meet D3.  PC 12205 was introduced to D3 and told to walk over to where D2 was standing.  PC 12205 gave $1,000 to D2 who gave PC 12205 one packet containing 2.67 grammes of ice (charge 2). 

8.In the early hours of 26 August 2016 D1 arranged to supply PC 12205 more ice for the same price as before.  D1 took PC 12205 to a parked van where PC 12205 gave $1,000 to a female sitting in the passenger seat.  The female then gave PC 12205 one packet containing 2.77 grammes of ice (charge 3). 

9.In the early hours of 27 August D1 again arranged to supply PC 12205 more ice for the same price as before.  D1 took PC 12205 in a taxi to Tin Heng Estate where D1 told PC 12205 to get the drugs from D4.  PC 12205 gave $1,000 to D4 who gave PC 12205 one packet containing 3.12 grammes of ice (charge 4). 

10.In the evening of 2 September 2016 D1 arranged to supply PC 12205 1.75 grammes of ice for $500.  In the early hours of 3 September D1 again took PC 12205 in a taxi to Tin Heng Estate to meet D4.  PC 12205 gave $500 to D4 who gave one packet containing 1.45 grammes of ice to PC 12205 (charge 5)[4]. 

11.In the evening of 11 September 2016 D1 arranged to supply PC 18104 with cannabis.  PC 18104 together with D1 and D6 went to the alley at the back of the Moses Bar.  PC 18104 gave $700 to D6 who gave PC 18104 one packet containing 2.96 grammes of cannabis (charge 6).

12.In the evening of 23 September 2016 D1 told PC 12205 he had a friend who could sell cocaine at a cheap price.  After making a phone call D1 and PC 12205 went to 39 Tin Sum Tsuen where D1 introduced PC 12205 to D5.  D5 sold PC 12205 four drops containing a total of 0.72 gramme of cocaine (charge 7).[5]

13.D1 was arrested on 17 December 2016; D2 on 18 December 2016 and D6 on 2 October 2017.

D1

Mitigation

14.I have carefully considered everything said on behalf of D1 by Mr Chan including that D1 has testified against D6 on charge 6 and was willing to testify against D2 and D3 on charges 2 & 3 until D2 pleaded guilty and D3 absconded. 

15.I have read the mitigation letters written by D1’s parents and Mr Tse Long Keung of the Tin Shui Wai District Youth Outreaching Social Work Team detailing D1’s drug taking history. 

16.D1 is a young offender, 18 at the time of the offence and now 20.  Section 109A of the Criminal Procedure Ordinance[6], 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.  Whilst this provision does not apply to trafficking in a dangerous drug, which is an excepted offence, a court must exercise great care before committing a young offender to prison. 

17.I therefore called for a Training Centre suitability report before passing sentence to provide the court with further information about D1.  When calling for the report I warned D1 that the appeal courts have made very clear that save in very rare cases a Training Centre Order should not be imposed for trafficking in substantial quantities of dangerous drugs.  

18.In Secretary for Justice v Chau Tsz Tim the Court of Appeal restated that only in very rare cases where there are exceptional circumstances will a Training Centre Order be appropriate for trafficking in substantial quantities of drugs[7].     

19.The Training Centre report reveals that after promotion to secondary school D1 failed most subjects and instead of working hard mingled with undesirable schoolmates.  Out of curiosity D1 started taking ice in late 2009 when he would have just turned 12 years of age.  Consequently, D1’s school performance continued to deteriorate. 

20.In June 2015 D1 quit school as a Form Four drop out and on 2 June 2015 started to receive voluntary drug treatment at the Christian Zheng Sheng Association.  Two days later D1 was found in possession of ice inside the Christian Zheng Sheng College for which he was subsequently sent to the DATC in August 2015. 

21.Although D1 appears to have maintained a drug free life since his release from the DATC in January 2016 he became involved in trafficking in ice, cocaine and cannabis resulting in the charges to which he has pleaded guilty.

22.While on remand D1 has managed to comply with the institutional regulations and rules.  D1 was polite when interviewed and expressed his regret, promising he would secure a job and live a law-abiding life in the future. 

23.A period of disciplinary training coupled with statutory supervision is said to be beneficial to D1 in order to help him gain insight into his problems and strengthen his law-abiding concept.  Mr Chan asks that the court imposes a Training Centre Order.

24.In HKSAR v Pau King Kong, a case concerning multiple drug trafficking (ketamine and ice) to an undercover police officer, the Court of Appeal held that the appropriate sentence for a young offender with a clear record, who was 17 at the time of the offences and 18 at the time of sentence, was 3 years’ imprisonment[8].

25.In restating that only in very rare cases, where there are exceptional circumstances, will a Training Centre Order be appropriate for trafficking in substantial quantities of drugs, the court in Secretary for Justice v Chau Tsz Tim referred to HKSAR v Pau King Kong as an example where imprisonment was appropriate for a young offender[9].

26.Although the court in HKSAR v Pau King Kong appears to say that detention in a Training Centre may have been appropriate if the applicant had not been drug dependant[10], I am satisfied the Court of Appeal were not saying that in every case where a defendant is not drug dependent detention in a Training Centre will be appropriate. 

27.The personal circumstances of D1 are very different to the applicant in HKSAR v Pau King Kong, in particular D1 is a little older; does not have a clear record having been sentenced to DATC for drug offences and cannot be said to have come from difficult family circumstances. 

28.After very careful consideration I am satisfied that this is not one of those very rare cases where a Training Centre Order would be appropriate.  D1 whilst young, is not of extreme youth.  D1 does not have a clear record having convictions for possession of drugs.  The fact the defendant has assisted the authorities by giving evidence against D6 and was willing to give evidence against D2 and D3 is not in my view an exceptional circumstance.  D1 will be given credit for this over and above the discount appropriate for his pleas of guilty.

Guidelines

29.In HKSAR v Tam Yi Chun[11] the Court of Appeal recast the sentencing guidelines for trafficking in ice.  The starting point after trial where the quantity of narcotic is up to 10 grammes is between 3 and 7 years’ imprisonment.

30.The courts have equated for sentencing purposes cocaine with heroin[12].  In R v Lau Tak Ming the Court of Appeal laid down guidelines for trafficking in heroin[13].  The court said that the sentence upon conviction after trial where the quantity of narcotic is up to 10 grammes is between 2 and 5 years’ imprisonment.    

31.In Attorney General v Tuen Shui Ming & another the Court of Appeal laid down guidelines for sentencing cannabis resin[14]. Where the quantity of cannabis is under 2000 grammes sentence is up to 16 months’ imprisonment.  The court further said that the tariff is to be adjusted for herbal cannabis which has a lower concentration of tetrahydrocannabinol than cannabis resin. 

Starting points

Cocaine

32.Charge 7 is a joint charge with D5 who pleaded guilty and was sentenced by HH Judge Yiu on 26 March 2018[15]. I have read the reasons for sentence and note that HH Judge Yiu adopted a starting point of 2 years imprisonment for 0.72 gramme of cocaine[16]. 

33.Mr Chan submits that the court should adopt the same starting point.  In my view the correct starting point after trial for 0.72 gramme of cocaine, contained in four plastic packets, is 2 years and 3 months’ imprisonment. 

34.In my view the correct starting point after trial for 0.58 gramme of cocaine, contained in three plastic packets, is 2 years and 2 months’ imprisonment (charge 1). 

Ice

35.Charges 2, 3, 4 & 5 concern trafficking in ice.  Charges 4 & 5 are joint charges with D4 who pleaded guilty before HH Judge Yiu and was sentenced on 24 April 2018[17]. I have read the reasons for sentence and note that HH Judge Yiu adopted starting points of 3 years and 6 months’ imprisonment for 3.12 grammes of ice (charge 4) and 3 years’ imprisonment for 1.45 grammes of ice (charge 5)[18]. 

36.Whilst accepting that the court is not bound by the starting points adopted by HH Judge Yiu, Mr Chan submits that to achieve consistency in sentence the court should again adopt the same starting points even if this results in a lenient sentence.

37.In my view the correct starting points should be higher.  InHKSAR v Pau King Kong the Court of Appeal dismissed the first ground of appeal that the starting point of 4 years’ imprisonment was excessive for trafficking in 2.92 grammes of ice[19]. 

38.I am satisfied the starting point after trial for 2.67 grammes of ice is 4 years’ imprisonment (charge 2); for 2.77 grammes of ice is also 4 years’ imprisonment (charge 3); for 3.12 grammes of ice is 4 years and 3 months’ imprisonment (charge 4); and for 1.45 grammes of ice is 3 years and 4 months’ imprisonment (charge 5).

Cannabis (charge 6)

39.Although the amount is small, 2.96 grammes of herbal cannabis, the offence of trafficking in drugs is a serious offence for which immediate imprisonment is appropriate[20].

40.I am satisfied for 2.96 grammes of herbal cannabis the starting point after trial is 12 weeks’ imprisonment.

Discount for pleading guilty

41.On 3 October 2017 D1 indicated a plea of not guilty to all seven charges and a trial date was fixed for 9 April 2018.  The sentencing guidelines in HKSAR v Ngo Van Nam therefore apply[21].  By letter dated 29 March 2018 D1 indicated he would plead guilty to all seven charges.  The court having been informed of the guilty plea prior to trial a discount of 20-25% is appropriate. 

42.The sentence on charge 1 is reduced to 1 year and 8 months; on charge 2 to 3 years; on charge 3 to 3 years; on charge 4 to 3 years and 3 months; on charge 5 to 2 years and 6 months; on charge 6 to 9 weeks and on charge 7 to 1 year and 9 months’ imprisonment.

Assistance to authorities

43.D4, who was sentenced by HH Judge Yiu, also gave a witness statement and was willing to give evidence against D1.  Referring to Z v HKSAR[22]HH Judge Yiu gave D4 a discount of 50%. 

44.In my view the Court of Final Appeal in Z v HKSAR held that the usual discount where a defendant had provided assistance to the authorities without testifying is 40% and 50% is given where a defendant gives truthful and material evidence[23]. 

45.In HKSAR v Leung Kai Wing the Court of Appeal held that providing a witness statement and undertaking to be a prosecution witness entitled the applicant to a 40% discount.  The court went on to say that whether a defendant should receive more than 40% will be a fact sensitive matter that will depend upon a range of matters of the kind mentioned by Li CJ in Z v HKSAR.  The fact the statement given was the reason why the co-accused pleaded guilty did not on its own take the discount beyond 40%[24].

46.If D1 had indicated his plea of guilty before the trial date was fixed he would be entitled to 50% discount on charge 6.  The fact D1’s indication of plea was just before trial in my view entitles D1 to an additional 17% on charge 6, i.e. a discount of between 37% and 42%. This further reduces the sentence on charge 6 to 7 weeks i.e. an additional 2 weeks making a discount of just less than 42%.

47.In his written supplemental mitigation Mr Chan submits that D1 having given evidence on charge 6 should be given the same discount on all charges.   I disagree. 

48.Charge 6 is by far the least serious charge and as stated earlier attracts a sentence of only 12 weeks after trial whereas the other charges attract sentences after trial of between 2 years and 2 months and 4 years and 3 months’ imprisonment.  In my view it would be wrong to give the discount on all charges.  I am satisfied D1 is only entitled to a further discount on the charges for which he has given assistance. 

49.In respect of charges 2 & 3 the evidence of D1 was not the only evidence.  The prosecution’s principle witnesses all along were the undercover police officers.  The prosecution would have been able to proceed without the evidence of D1. 

50.If D1 had indicated his plea of guilty before the trial date was fixed he would have been entitled to 40% discount on charges 2 & 3. The fact D1’s indication of plea was just before trial in my view entitles D1 to an additional 7% on charges 2 & 3, i.e. a discount of between 27% and 32%, no factors having been drawn to my attention justifying a higher discount.  This further reduces the sentence on charges 2 & 3 to 2 years and 9 months i.e. an additional 3 months on each charge making a discount of almost 32%.

Totality

51.In HKSAR v Pau King Kong, a case concerning six charges of trafficking in ice and ketamine to an undercover police officer, the Court of Appeal said that each charge represented a separate act of trafficking which added to the overall culpability of the applicant’s conduct[25].

52.The seven offences having been committed by D1 on seven different days, represent separate acts of trafficking for which consecutive sentences are appropriate to reflect D1’s overall culpability.  Subject to totality sentence must reflect there were seven separate occasions when three different dangerous drugs were supplied.   

53.In considering totality of sentence the Court of Appeal in HKSAR v Pau King Kong said that what is a crushing sentence for a mature adult and what is crushing for a young man emerging from adolescence are two quite different matters[26]. In quashing the total sentence of 3 years and 8 months’ imprisonment imposed by the trial judge the Court of Appeal substituted a total of 3 years’ imprisonment partly reached by ordering 2 months’ consecutive on each of charges 2, 4, 5 & 7.

54.Following the approach in HKSAR v Pau King Kong, consecutive sentences of 2 months’ imprisonment would be appropriate for charges 1, 2, 3, 5 & 7 to run consecutive to charge 4.  Charge 6 would only attract at most 2 weeks consecutive. 

55.This approach would be appropriate even if D1 did not assist the authorities.  To ensure therefore that the defendant is given credit for providing assistance to the authorities, I am satisfied the sentences on the charges involving ice and cannabis should be made concurrent and only part consecutive sentences be imposed for the charges involving cocaine.

56.I am satisfied a total sentence of 3 years and 7 months’ imprisonment properly reflects D1’s overall criminal culpability on the charges and takes into account D1’s personal circumstances and the seriousness of the offences, including the total quantity of drugs and that D1 was trafficking in three different drugs[27].

57.D1 is convicted and sentenced as follows:

Charge 1 – 1 year and 8 months’ imprisonment;

Charge 2 – 2 years and 9 months’ imprisonment;

Charge 3 – 2 years and 9 months’ imprisonment;

Charge 4 – 3 years and 3 months’ imprisonment;

Charge 5 – 2 years and 6 months’ imprisonment;

Charge 6 – 7 weeks’ imprisonment;

Charge 7 – 1 year and 9 months’ imprisonment;

I order the sentences on charges 2, 3, 4, 5 & 6 to be served concurrent; 2 months of the sentence on charge 7 to be served consecutive and 19 months concurrent to charges 2, 3, 4, 5 & 6 and 2 months of the sentence on charge 1 to be served consecutive and 18 months concurrent to charges 2, 3, 4, 5, 6 & 7. The total sentence to be served by D1 is 3 years and 7 months’ imprisonment.

D2

Mitigation

58.I have carefully considered everything said on behalf of D2 by Mr Pun, including that D2 is almost blind in one eye.  I have read the mitigation letters written by D2, his parents and family members; Mr Wong Kai Yin a friend of D1 and Mr Cheung Tsz Kit an outreaching social worker[28].

Starting point

59.Although Mr Pun accepts that the proper starting point after trial for 2.67 grammes of ice is 4 years’ imprisonment, Mr Pun submits that it would be unfair if the court adopted a higher starting point than 3 years and 6 months’ imprisonment adopted by HH Judge Yiu for 3.12 grammes of ice.  To achieve consistency in sentence Mr Pun submits that a starting point of no more than 3 years and 6 months’ imprisonment is appropriate.

60.For the reasons already given, I am satisfied the proper starting point after trial on charge 2 for 2.67 grammes of ice is the same as D1, namely 4 years’ imprisonment.

61.D2 also indicated pleas of not guilty on 3 October 2017 to charges 2 and 3.  On the first day of trial Mr Pun confirmed the pleas of not guilty.  The trial was however adjourned for the defence to consider the non-prejudicial statement given by D1. 

62.On the morning of the second day of trial Mr Raffell indicated that discussions were taking place between the prosecution and D2 and D3.  The trial was therefore adjourned to the next day.

63.On the morning of the third day of trial D2 indicated his plea of guilty to charge 2.  Upon conviction the prosecution would ask that charge 3 be left on the court file.  The trial was further adjourned by reason of D3’s admission to hospital, D3 having also indicated she would plead guilty to charge 2. 

64.On the fourth day of trial D3 was said to be still sick.  The case was therefore further adjourned to the next day.  On the fifth day of trial D3 was again absent.  By the afternoon it was quite apparent that D3 was not going to attend court.  Plea was then taken from D1, D2 and D6.  D1 pleaded guilty to charges 1-7 and D2 pleaded guilty to charge 2[29].

65.Albeit D2 only pleaded guilty on the fifth day of trial, I am satisfied in all the circumstances, in particular considering no evidence was called, that D2 is entitled to a discount of 20%. 

66.D2 is convicted and sentenced to 3 years and 2 months’ imprisonment, which is just over 20%.

Suspended sentence

67.On 24 September 2015 D2 was sentenced in the Tuen Mun Magistracy to 3 months’ imprisonment suspended for 18 months for an offence of possession of drugs[30]. The offence of trafficking in drugs was    committed during the operational period of the suspended sentence. 

68.I have had the opportunity of reading the case papers including a probation officer’s report, copies of which have also been shown to Mr Pun.

69.I am satisfied there are no exceptional circumstances whereby it would be unjust to activate the suspended sentence with the original term unaltered.  Considering totality of sentence, I am satisfied that it would be just to activate the suspended sentence consecutive to the sentence for trafficking in a dangerous drug making a total sentence to be served by D2 of 3 years and 5 months’ imprisonment.

D6

Mitigation

70.I have carefully considered everything said on behalf of D6 by Mr Li, including that D6 has a clear record; this was a one-off incident and that his mother is receiving medical treatment[31]. I take into account the voluntary work undertaken by D6 as evidenced by the certificate issued by the Hong Kong Young Women’s Christian Society. 

71.D6 is also a young offender, 18 at the time of the offence and now 19.  I therefore called for a Detention Centre, Rehabilitation Centre and Drug Addiction Treatment Centre suitability report to provide the court with further information about D6. 

72.The report reveals that after promotion to primary six D6 started loitering in public parks where he came to know undesirable peers who induced him to join a triad society with “Pau Chai” as his triad protector.  Having little interest in studies D6 quit school in March 2014 without completing Form Two.

73.In July 2016 D6 started taking cannabis.  After his arrest D6 continued to take cannabis.  The urine sample collected upon D6 being remanded in custody tested positive for cannabis.  

74.In view of D6’s persistent drug-taking behaviour and weak law abiding concept, a period of drug abstinence programme coupled with statutory supervision is considered essential for D6 to gain a deeper insight into his misdeeds.  The Medical Officer is of the opinion D6 is a drug dependant and considered suitable for admission to a Drug Addiction Treatment Centre.  

75.Mr Li asks that I call for a probation report to see if D6 is suitable for voluntary treatment in an open setting.  As stated earlier   although the amount of cannabis is small, 2.96 grammes of herbal cannabis, the offence of trafficking in drugs is a serious offence for which immediate imprisonment is appropriate[32].  I am satisfied probation is not appropriate. 

76.I am satisfied a period of treatment in a Drug Addiction Treatment Centre would be beneficial to D6’s rehabilitation and in the interests of the community.  The defendant is sentenced to detention in a Drug Addiction Treatment Centre.  Conviction is recorded.