HKSAR v. Chan Chun Kit

DCCC 8/2018

[2018] HKDC 855

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 8 OF 2018

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REASONS FOR SENTENCE

1.The defendant pleads guilty to one charge of trafficking in 9.39 grammes of a solid containing 5.33 grammes of cocaine, contrary to section 4 of the Dangerous Drugs Ordinance[1].

2.In summary at about 2307 hours on 16 October last year the police intercepted the defendant near Hin Hing House, Hin Keng Estate in Shatin.  The police found inside the left front pocket of the defendant’s trousers three resealable plastic bags inside which was a total of fifty smaller resealable plastic bags containing the cocaine.  The police also found two mobile phones and $380.  Under caution the defendant admitted that he intended to sell the cocaine for monetary gain.

Mitigation

3.In passing sentence, I have carefully considered everything said on behalf of the defendant by Mr Chan, as particularised in his written submission together with the defendant’s mitigation letter in which he expresses his remorse and asks for leniency.  I take into account that the defendant is only 18, 17 at the time of the offence.

4.Section 109A of the Criminal Procedure Ordinance[2], 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. 

5.On 10 May this year the defendant was sentenced to detention in a Training Centre for an offence of possession of drugs committed on 21 February this year.  I have read the case papers, including the DATC report[3]. 

6.The medical officer was of the opinion that the defendant was not a drug dependant and therefore not suitable for drug addiction treatment.  After general assessment of his behaviour and attitude while on remand the defendant was considered suitable for detention in a Training Centre. 

7.I was satisfied before passing sentence that I should call for an update report to know more about the defendant.  In the circumstances I called for a Training Centre suitability report. 

8.In summary the reportreveals that the defendant had a difficult upbringing.  When he was young his father was in prison and his mother passed away when he was six.  The defendant was placed in foster care and attended various boarding schools.  The defendant rarely saw his father until he was fifteen when he resumed living with his father.

9.Academic performance was unsatisfactory with the defendant instead playing computer and browsing obscene material.  In 2013 the defendant was placed on probation for offences of indecent conduct with children under 16. 

10.The defendant failed most subjects at school and quit school in 2015.  The defendant acquainted with dubious peers in amusement games centres.  In late 2016 the defendant joined the “14K” triad society.  Under the influence of his ringleader “Fat Wai” out of greediness the defendant started trafficking in dangerous drugs.   

11.According to the defendant’s supervision officer he has shown acceptable response towards counselling and has made fair progress in disciplinary training.  Having no concrete rehabilitation plan his determination to turn over a new leaf is doubted.

12. After a general assessment of the defendant’s behaviour and attitude whilst undergoing training he is considered suitable for detention in a Training Centre. 

13.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[4].    

14.Mr Chan tells the court that the defendant wishes to go to prison and not to be sentenced to Training Centre.  Mr Chan submits that there are no exceptional circumstances in this case, the background of the defendant being similar to the applicants in Secretary for Justice v Chau Tsz Tim[5].

15.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.  Notwithstanding the defendant’s young age, I am satisfied there are no exceptional circumstances warranting departure from the guidelines. 

Sentence

16.The courts have equated for sentencing purposes cocaine with heroin[6].  In R v Lau Tak Ming[7]the Court of Appeal laid down guidelines for trafficking in heroin.  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.     

17.On a strictly arithmetical approach a starting point of about 3 years and 7 months would be appropriate for trafficking in 5.33 grammes of cocaine.  Taking into account the defendant’s young age and this is his first conviction for trafficking, I am satisfied a slightly lower starting point of 3 years and 6 months’ imprisonment is appropriate. 

18.Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 2 years and 4 months’ imprisonment.