HKSAR v. Yan Qinda and Another

DCCC 1152/2018

[2019] HKDC 865

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1152 OF 2018

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REASONS FOR SENTENCE

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

2.Full particulars of the offences are set out in the facts admitted by D1 and D2 on 5 June 2019.   

3.In summary in the afternoon of 17 August 2018 the police conducted anti-narcotics operation in Lei Yu Mun Estate in Yau Tong. 

4.At about 1645 hours DSGT 3098 saw D2 and a boy, aged 10, wandering together outside the ground floor of Lei Sang House (Block 1). At about 1722 hours D1 joined D2 and the boy. 

5.D1, D2 and the boy then walked near to the exit/entrance of the carpark outside Lei Sang House where D1 took out a white object from the right front pocket of his trousers and passed it to the boy.  The boy put the white object into the right front pocket of his trousers.

6.When D1 separated from D2 and the boy the police intercepted D1, D2 and the boy for investigation. 

7.Upon search D1 took out from his right shoe six transparent re-sealable plastic bags containing a total of 5.19 grammes of a solid containing 2.87 grammes of cocaine (charge 1). 

8.Upon search DPC 14582 found in the right front pocket of the boy’s trousers five transparent re-sealable plastic bags contained in a plastic bag and wrapped by white tissue paper.  The five transparent re-sealable plastic bags contained a total of 4.30 grammes of a solid containing 2.25 grammes of cocaine (charge 2). 

9.The estimated street value of the cocaine was $14,700.

10.Under caution and in a subsequent video recorded interview D1 admitted, inter alia, that he was asked by Ah Cheung to deliver eleven packets of cocaine; he would earn $100 for every packet of cocaine he delivered; he was instructed to pass five packets to two persons; he met D2 and the boy and gave five packets to the boy and $100 to D2; and that the other six packets would be delivered to other persons. 

11.Under caution and in a subsequent video recorded interview D2 admitted, inter alia, that he was asked by an unknown male to do a job for a reward of $100; D2 was told to go to the ground floor of Lei Sang House; D2 contacted the boy promising him a reward of $50; they waited outside Lei Sang House where D2 received a call asking him to wait for a male; D1 arrived in a taxi and gave the boy an item wrapped by tissue paper;  D1 told D2 and the boy that the item contained dangerous drugs and warned them to watch out for the police; D1 gave $100 to D2 as transportation fee and told D2 and the boy to wait for a phone call. 

D1

Mitigation

12.I have carefully considered everything said on behalf of D1 by Mr Ho, including that at the time D1 was only 17 and was remorseful.  D1 says he wishes to learn some skills while serving his sentence[2].

13.D1 is a young offender, now 18.  Section 109A of the Criminal Procedure Ordinance[3], 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. 

14.I therefore called for a Training Centre suitability report before passing sentence to provide the court with further information about D1. 

15.The report reveals that in 2012 D1 together with his mother came to Hong Kong to live with his step-father.  D1’s mother however stayed most of the time in the Mainland. 

16.D1 was unable to catch up with the school curriculum in Hong Kong and failed most of his subjects both in primary school and secondary school.  D1 became affiliated with dubious classmates and under their influence joined the San Yee On triad society in December 2015. 

17.D1 was soon in trouble committing offences of robbery and theft for which he was placed on probation.  D1 was first arranged to reside in Youth Outreach Transitional Housing for Boys and later at Tuen Mun Children and Juvenile Home.  D1 managed to behave himself and on release resumed living with his mother.

18.D1 enrolled in a three-year diploma in fitness and sports studies but quit after six months and started working part-time as a waiter.  Owing to poor work attitude D1 was dismissed.  In need of money D1 was tempted to traffick in dangerous drugs and started trafficking in cocaine daily in May 2018. 

19.D1 gave the impression of being a disoriented youngster who did not formulate a concrete future rehabilitation plan even after a ten-month remand period. 

20.D1 is considered suitable for a period of disciplinary training, a view endorsed by his mother, who regards her son as immature and in need of close guidance and supervision.  D1 says he does not want to go to a training centre.

21.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[4].

22.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 theft and robbery and committed the offences for earning fast money.  I am satisfied there are no exceptional circumstances warranting departure from the guidelines. 

Guidelines

23.The courts have equated for sentencing purposes cocaine with heroin[5].  In R v Lau Tak Ming the Court of Appeal laid down guidelines for trafficking in heroin[6].  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.

Starting points

Cocaine

24.On a purely arithmetical approach a starting point of just over 2 years and 10 months’ imprisonment would be appropriate for trafficking in 2.87 grammes of cocaine and 2 years and 8 months’ imprisonment would be appropriate for trafficking in 2.25 grammes of cocaine. 

25.Taking into account D1’s young age and that he has no previous drug convictions I adopt starting points of 2 years and 9 months’ imprisonment and 2 years and 6 months’ imprisonment.   

26.Giving D1 full credit for his pleas of guilty reduces the sentences to 1 year and 10 months’ imprisonment and 1 year and 8 months’ imprisonment. 

Section 56A of the Dangerous Drugs Ordinance

27.Section 56A of the Dangerous Drugs Ordinance provides that a more severe sentence may be passed where the commission of the offence involves a minor.  D2 was 14 at the time of the offences and the boy was only 10.  The imposition of a more severe sentence is discretionary. 

28.Section 56A only applies where the offender himself is not a minor.  In HKSAR v Ng Hon Keung (referred to the court by Mr Chak) the Court of Appeal held that a minor is anyone below 18[7].

29.At the time of the offences D1 was 17.  In the circumstances I am satisfied section 56A does not apply[8].

30.If the date of sentence is the relevant date in determining whether the offender is himself a minor or an adult for the purposes of section 56A, I am satisfied by reason of the fact that D1 was a minor at the time of the offence I should exercise my discretion by not imposing a more severe sentence.

Totality

31.I agree with Mr Ho that the cocaine subject of the two charges having been found at the same time the combined total of cocaine should be looked at when considering sentence[9].

32.On a purely arithmetical approach a starting point of just over 3 years and 6 months’ imprisonment would be appropriate for trafficking in 5.12 grammes of cocaine.  Giving full credit for a plea of guilty would result in a sentence of 2 years and 4 months’ imprisonment.  

33.I am satisfied a total sentence of 2 years and 4 months’ imprisonment properly reflects D1’s overall criminal culpability on the two charges and takes into account D1’s personal circumstances and the seriousness of the offences[10].  

34.D1 is convicted and sentenced as follows:

Charge 1 – 1 year and 10 months’ imprisonment;

Charge 2 – 1 year and 8 months’ imprisonment with 6 months consecutive and 14 months concurrent to charge 1;

The total sentence to be served by D1 is 2 years and 4 months’ imprisonment.

D2

Mitigation

35.I have carefully considered everything said on behalf of D2 by Mr Keung, including that D2 has a clear record and is currently a Form 2 student[11].  I have read the two mitigation letters written by D2. 

36.D2 is 15, 14 at the time of the offence and for sentencing purposes is regarded as a young person[12]. Section 11 (2) of the Juvenile Offenders Ordinance[13] provides that no young person shall be sentenced to imprisonment if he can suitably be dealt with in any other way.

37.Section 3F (1) of the Juvenile Offenders Ordinance provides that if a young person is found guilty of an offence other than homicide by any court other than a juvenile court, the court shall unless satisfied that it would be undesirable to do so, remit the case to a juvenile court.

38.Mr Keung submits that as D2 is jointly charged with D1 both defendants should be dealt with together. 

39.I am satisfied that D2 being jointly charged with D1 and that a major consideration in sentence of both D1 and D2 is whether there are exceptional circumstances warranting departure from the guidelines for trafficking in cocaine, it would be undesirable to remit the case to a juvenile court[14].

40.In view of D2’s young age I called for a Training Centre suitability report before passing sentence to provide the court with further information about D2. 

41.The report reveals that D2 comes from a broken family.  Lacking adequate parental supervision D2 turned rebellious and was arranged to study in a boarding school since Primary Three.  D2 showed improvement, ranking first in English and showing no significant behavioural problems. 

42.After entering secondary school D2 started to mingle with undesirable peers and turned wayward.  School performance deteriorated, D2 failing most subjects in Form 1. 

43.Sometimes D2 would not return home resulting in a Care and Protection Order being made in February last year.  D2 was said to have a positive attitude towards counselling but repeatedly failed to return to boarding school and on one occasion escaped from the boarding school.  

44.In June last year D2 joined the San Yee On triad society and soon ran into trouble.  In August D2 committed the present offence.  D2 was placed on bail and continued to mingle with his triad peers. 

45.D1 ranked last in his class and was required to repeat Form 2.  According to Ms Wong, the school social worker, D2 is a troublesome student whose conduct was poor including threatening school teachers, speaking foul language to teachers, smoking and fighting with classmates. 

46.Ms Wong believes disciplinary training would benefit D2 and that school placement will not be reserved for him[15].

47.D2 appeared to be a playful youth who was susceptible to undesirable influence.  D2’s mother showed great concern and believed her son had learnt a lesson for his misdeeds during the remand period.  D2’s mother asked for a lenient sentence and promised her support in his rehabilitation. 

48.The Rehabilitation Assessment Officer detected little sense of remorse and sincerity to turn over a new leaf was in great doubt.  In his mitigation letters D2 says he has reflected on his past behaviour and promises never to commit any offence ever again.

49.D2 is considered mentally and physically fit for detention in a Training Centre.  On the information available and after a general assessment of his behaviour and attitude on remand, the Rehabilitation Assessment Officer considers D2 suitable for detention in a Training Centre.

50.In his mitigation letter D2 asks for a non-imprisonment sentence.  Mr Keung informs the court that D2 agrees the content of the report and although he would prefer to go to a reformatory school he nevertheless accepts the recommendation in the report. 

51.After very careful consideration and taking into account D2 has a clear record and was only 14 at the time of the offence, I am satisfied that this is one of those very rare cases where a Training Centre Order would be appropriate.  I am satisfied that it would be in the interest of D2 and that of the community that D2 undergoes a period of training in a Training Centre[16].

52.D2 is sentenced to detention in a Training Centre.