HKSAR v. Cheung Tam Wa

DCCC 525/2019

[2019] HKDC 1601

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 525 OF 2019

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Reasons for Sentence

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1.The defendant has pleaded guilty to a single offence of trafficking in a dangerous drug, contrary to sections 4(1)(a) and 4(3) of the Dangerous Drugs Ordinance.

2.He has agreed the facts and I have convicted him.

3.The facts can be very simply stated because the defendant was arrested at the Customs Departure Hall of Hong Kong-Macau Ferry Terminal in Sheung Wan in the evening of 23rd March 2019.  A quantity of plastic bags containing cocaine was found in his underwear on a search and the total narcotic content of the drug found in the defendant’s possession was 19.28 grammes, the street value of that being $19,672.40.  The defendant was in possession of a Turbo Jet ferry ticket from Hong Kong to Macau.

4.Defendant provided an explanation for his possession of the drug.  He had been given the drug from a friend of a friend in Tai Wai.  He did not expect any reward for this, apparently.  He was to take the package to Macau. 

5.Of significance to this case is the defendant was 17 years old at the time of his arrest.  He is now 18 years old and has been in custody since 24th March 2019.  The defendant naturally admits he was in possession of those drugs for the purpose of unlawful trafficking in them. 

6.As far as the defendant’s background and antecedents is concerned, I have already dealt with his age.  He is a person of clear record.  He has been subject to a superintendent’s caution though.

7.I obtained further details of the defendant’s background from a detailed background report.  The detail of the report does deal with the fact that the defendant had become somewhat wayward but has a determination to bear the legal consequences of this offence.  He has considerable support and encouragement from his family, who visits him regularly.  He seeks an early discharge from prison. 

8.In slightly more detail, the defendant had lived with his family in the New Territories in Sha Tau Kok.  He seems to have been reasonably competent in sport.  After completing Form 5, he had found employment as a casual worker generally.

9.Turning to the approach to sentence for a person such as Mr Cheung, sentencing for adults in drug trafficking is clearly set out by or controlled by way of guideline sentencing.  The guideline sentence for heroin and cocaine is the same. 

10.Here, we are within the guideline band of between 10 grammes to 50 grammes, where a sentence of between 5 to 8 years’ imprisonment is appropriate.  The quantity I am dealing with is, in fact, 19.28 grammes, which is towards the lower end of the band.  Mr Young has very helpfully done the mathematical calculation and said that would lead to a starting point for sentence of 5 years and 0.85 months’ imprisonment.

11.I do know that it is said that a guideline sentence is not a straitjacket in the way that a mathematical calculation has to be made, and Mr Young for the defendant has asked in his mitigation for the court to take account of the defendant’s youth at the time of arrest and now the time of sentencing.  Particularly the court is being asked to pass a sentence which would lead to the defendant not having to enter an adult prison at the age of 21.

12.The defendant is currently detained in Pik Uk Correctional Institute, which is where both remanded and convicted young persons are kept in custody.  There are a number of rehabilitation services provided there for young offenders.  The Correctional Services Department has indicated that the defendant has adjusted well to the regime in Pik Uk and it would appear to be to the benefit of Mr Cheung if he could serve his sentence of imprisonment within that institution, and he has asked if the court could craft a sentence which would avoid a long period of socialisation with adult male offenders.

13.Generally, in the past, the fact of a defendant’s youth has not been a significant factor in mitigating sentences of imprisonment for drug trafficking offences.  At one point, the Court of Appeal has said that no regard can be paid to it, and more recently it has been said it can be a mitigating factor in trivial offences.

14.I have been referred to two recent cases of the Court of Appeal in 2018, which deal with youth sentencing:  Secretary for Justice v Wong Chi Fung (2018) 21 HKCFAR 35 and Secretary for Justice v Leung Hiu Yeung (2018) 21 HKCFAR 421. 

15.Although both cases were concerned with section 109A of the Criminal Procedure Ordinance, which does not apply to this offence, what can be said is the court did consider the effect of sentencing young offenders and they set out what seems to me to be an evidently common-sense proposition, that the age of an offender, whether of a youth or an advanced age, is always a relevant mitigating factor in sentencing, simply because there is better opportunity for reformation and rehabilitation with younger offenders, and it does appear to me that earlier attempts to restrict that consideration have been ill-advised.

16.It does appear to me that the age of the offender at the time of arrest and sentencing, even in drug trafficking cases, is a factor that must be considered in sentencing.

17.Having said that, what effect should I give to that consideration in the case of Mr Cheung?  Where and what starting point should this court take in relation to him? 

18.I think that taking the mathematical calculation as a starting point would be appropriate, given the defendant’s age and the matters that have been raised in mitigation, but I still must give due consideration to the settled starting guideline sentence for adult offenders. I have decided to take a starting point for Mr Cheung, which bears some relation to guideline sentence in relation to adult offenders.

19.Taking all these factors into consideration, I am prepared to adopt a starting point for sentence for Mr Cheung at 57 months’ imprisonment.

20.After a deduction for a plea of guilty, that would of course lead to a sentence of 38 months’ imprisonment, and that is the sentence I will impose.