HKSAR v. Tang King-wa

HCCC 224/2021

[2022] HKCFI 1091

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 224 OF 2021

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BETWEEN

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to one count of Trafficking in a Dangerous Drug contrary to s4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134 at the first opportunity before the Eastern Magistrates’ Courts on 8 November 2021 and has confirmed that plea on 4 February 2022. This Court intends to take an exceptional approach to sentencing by making a Training Centre Order and these are the reasons for that decision.

Summary of Facts

2.The facts before the Court are extremely brief. On 2 January 2021, police officers were carrying out the usual anti-crime patrol in the area of Tin Yan Road.  They intercepted the defendant and searched a small Gucci bag he had with him.  In it were seven small re-sealable plastic bags containing crack cocaine.  In all the narcotic content of that cocaine was 190g.  In interview, the defendant admitted possession of the cocaine.

Background

3.The defendant is now 18 years of age.  He was born on 2 December 2003 and was therefore only just 17 when he committed this offence and he was of good character.  Why then would he be found with crack cocaine?

4.The defendant was just five years old when his elder brother died of an illness.  During that period of time, and because of the infidelity of his father, his parents separated and divorced.  His mother was left to raise the two remaining boys on her own.  The defendant was the youngest of the two and in his early years was considered by the whole family to be a good child.  The mother bore the responsibility of providing for the family.  She did that by operating a catering business, which meant long hours at work and significant periods of time when the children would be unsupervised.  During that period of time, when the defendant was still very young, his mother suffered a psychiatric disorder brought about by the stress of caring for the family and undertaking full time work.  She has told the Court that during that period of time, her children did not get the emotional support they needed as the extended family concentrated on providing support to her to help her cope with the loss of both a husband and a son.  I have also read a long letter of support from Chow Wing-ho, a teacher at Yuen Long Government Primary School.  She was a class teacher of the defendant in Primary 6 in 2015-16.  The defendant at 12 years old age, was described as having a “strong, impulsive and flexible personality…not bound by rules and would follow his heart”.  This evidenced itself in some disciplinary issues, which were put down to a lack of control and supervision at home.  But he was also a young boy who was seen to treasure relationships, was loyal to friends and would step in to protect them.  To provide him with a sense of discipline, which he did not have at home, the school encouraged his sporting abilities.  He took part in track and field, swimming and basketball.  His considerable success as a sportsman led to better discipline, increased self-confidence and a change in attitude to those in authority.  He became polite and earned the respect of both staff and students alike.

5.In 2017, the defendant enrolled in Yuen Yuen Institute MFBM Nei Ming Chan Lui Chung Tak Memorial College.  I have a letter from his class teacher Lam Mei-ying.  This too indicates a pleasant, polite young man, who loves his mother deeply.  He struggled academically at College but nevertheless enrolled in a VTC programme with a view to a future career as a hair dresser.  That course has been cut short by his offending.

6.Unfortunately, it was not until 5 March 2019, after a period of academic difficulty at school, and other behaviour which caused his mother concern, that the defendant was dealt with professionally for what, at that time, presented as depression.  He was just 15 years old and he had started to self-harm.  He was irritable, had difficulty sleeping, socialising and studying.  He was diagnosed as having a Moderate Depressive Episode and prescribed Fluoxetine and Xanax.  A week later, when seen again by Dr Pao, a psychiatrist, he admitted to taking the fluoxetine for just two days only.  This was an indicator of things to come.  Dr Pao had previously noted the defendant’s limited insight into his condition at their first consultation, and the defendant’s reluctance to take prescribed medication from medical professionals then and later is linked to his use of illicit drugs. Nevertheless, at this stage, he was just 15 years old and he was not well.  He did not take the advice of Dr Pao and there appeared to be no input from his mother by way of encouragement or ensuring he took his medication.  On the third occasion that Dr Pao saw him, the defendant confirmed that once again he had not taken his medication but suggested that he was feeling a little better.  In the light of his reluctance to take the medication and his euthymic (stable)  presentation with no suicidal thoughts, Dr Pao unfortunately was of the opinion that further consultations were of no value and the defendant was advised to return for assistance when he needed it.  There is no mention of any enquiries into what other, if any, support this child was getting.

7.I do not wish to overly or unfairly criticise either Dr Pao or the defendant’s mother, and it is very easy to comment with the benefit of hindsight, but a 15-year-old boy needs discipline and if given medication, then he should have been supervised to the extent that he took it. This was an adult responsibility and it fell to his mother to ensure that was done.  She failed him in this respect.  It fell to the relevant mental health professional to ensure that was driven home to both child and parent.  This was clearly not done.

8.That was March 2019, the defendant was clearly depressed and emotional and without professional support.  If the information I have been given is correct, this would be the beginning of a window, between 2019 and 2021, when the defendant had sought refuge in recreational drugs to ease his depression.  It was a naïve ‘quick fix’ and it allowed him to mix in a bad crowd.  Although it has to be said that the friends he made at this time appeared to him to be the only ones who cared and that, in turn, nurtured a loyalty towards them.

9.In August 2020, his mother sought help for him once more.  This time with Dr Au Yeung Kwok Leung, another psychiatrist.  At this point, the defendant indicated he was stressed by a romantic relationship as well as by his relationships generally and with his family.  He was anxious, had shortness of breath, palpitations, chest discomfort, tremors, sweating and dizziness.  His mood was low and he now presented with suicidal thoughts.  He could not sleep and his relationships and study were affected.  He was just 16 years old and his condition had significantly deteriorated.  Dr Au Yeung also noted that the defendant had limited insight into his mental illness.  He was diagnosed as having depression and dysthymia, which are indicative of feelings of depression and deep sadness and classified as a major depressive disorder (MDD)  and a persistent depressive disorder (PDD)  respectively.  PDD is a chronic form of depression but can be less severe than MDD, although it can last for years, whilst MDD can be diagnosed after just presenting as clinically depressed after two weeks but is more severe.  Someone with PDD can have episodes of MDD.  As a consequence of that diagnosis, the defendant was prescribed Escitalopram (an anti-depressant)  and Alprazolam (a sedative).  He was seen again a week later.  He reported that his mood had improved with the anti-depressant medication but he had not taken the sedative.  On his return to Dr Au Yeung on 15 September 2020, the defendant was in a poor state as he had just broken up with his girlfriend.  He reported that he had used the sedative to control his unstable mood but had been able to continue studying.  As a result, Dr Au Yeung prescribed a further three weeks of medication.

10.The defendant did not return to see Dr Au Yeung after that.  I infer from the ensuing events that he had once again not taken the prescribed medication because on 28 September 2020, almost two weeks after last seeing Dr Au Yeung, he attempted suicide and was taken to the Accident and Emergency Department of Tuen Mun Hospital.  As an in-patient, he was first seen by Dr Lai Chun Lun Eric, an associate consultant at the Castle Peak Hospital, on 6 October 2020.  This was the first time at which he admitted to the use of drugs such as cannabis, MDMA, ketamine and Amphetamines to any medical professional.  These drugs, instead of the prescribed medication, were how he dealt with his depression.  According to the defendant’s account to Dr Lai, he had made several previous attempts to commit suicide as a result of the stress of his relationship with his girlfriend.  These had included cutting his wrists, drug overdose and drowning.  Dr Lai diagnosed him with Adjustment Disorder[1] and indicated he required hospitalisation.  But that course of action required voluntary admittance and as the defendant still did not understand the degree or persistent nature of his mental illness, he declined.  Unfortunately, his mother, who was his legal guardian, also did not understand the degree of professional help he required and supported his decision not to seek in-patient care.  He was therefore provided with out-patient care at the Tuen Mun Child and Adolescent Mental Health Centre where he was seen for follow-up examinations.  At no point in time does it appear that Dr Lai discussed the previous diagnoses of both Dr Pao or Dr Au Yeung.

Tariff

11.The sentencing guidelines for trafficking in cocaine can be found in HKSAR v Lau Tak Ming [1990] HKLR 370.  On Count One, for trafficking in between 50-200g of cocaine, the range of sentencing after trial is between 8-12 years.  For 190g therefore the starting point after trial would be just over 12 years’ imprisonment.  That starting point was designed to cover those who are couriers, usually seen to be those involved in trafficking in dangerous drugs at the bottom end of the scale.  However, in HKSAR v Herry Jane Yusuph CACC 93/2019 [2020] HKCA 974, the Court of Appeal noted that there may be situations in which someone’s actions place them in a different category in terms of culpability and blameworthiness.  The defendant was not well.  He did not comprehend that he needed help.  His mother failed him and the mental health professionals failed him when he was at a very tender age.  He resorted to a quick fix without any insight into how this would pan out in future years.  As both Dr Pao and Dr Au Yeung have said, he really had no insight into the fact that his depression was something that was here to stay.

12.In the normal course of events, as a simple courier you would expect a starting point after trial for sentence of 12 years but as someone who was just one month into his 17^th year, your level of culpability fell short of that and I consider that the starting point should be reduced by 1 year to that of 11 years.  Your sentence of imprisonment after a full one third discount for your plea would normally therefore be 7 years 4 months which would be subject to deduction for the time you have already spent in prison since January 2021 and one third remission for good behaviour.

Training Centre

13.But I believe you need help.  You are a young man of good character who has never been in serious trouble before and who has always responded well to intervention.  Several letters in mitigation state what a decent young man you are.  There is no doubt that you have a mental illness which will be with you your whole life but which can be addressed if you will allow mental health professionals to help you.  To do that you have to come to terms with that illness and obtain the proper support.  You entered the world of drugs at a vulnerable age because you did not have that support.  The adults in your life, both familial and professional needed to take better care of you.  It has been shown that with discipline and support, you can be your true self and you can achieve.  There will be no need to go near any dangerous drugs if you have a true understanding of your illness and proper medical support for the rest of your life.

14.Training Centres are operated by the Correctional Services Department for offenders between the age of 14 and 21. The emphasis is upon rehabilitation, education and vocational training.  The order is an indeterminate one.  It is not for this Court to say for how long you will be held within the Training Centre.  That will be for the CSD to decide but the minimum amount of time you will be detained is six months and the longest period of detention can be up to three years.  There is therefore a huge incentive to avail yourself of all that such a custodial option offers. You will also be subject to up to three years’ supervision after release.  In accordance with Wong Chun Cheong v HKSAR [2001] 4 HKCFAR 12, I take the view that:

i)  The offence to which you have pleaded guilty attracts a sentence of imprisonment;

ii)  You are 18 years of age;

iii)  In all the circumstances of this case, the interests of the community are nevertheless achieved by taking a rehabilitative approach to sentencing given your previous good character, your known character when given appropriate support; your remorse and your illness; and

iv)  Whilst it may appear extremely lenient in the face of a likely actual term of effective imprisonment of 7 years 4 months, which may attract an effective term with good behaviour of 4 years 9 months less the 15 months spent on remand, this Court can take cognisance of your adaptability to discipline and otherwise good character, as against the upper limit of 3 years Training Centre and 3 years’ supervision. Should that period be less, then that is to your credit and indicates that this offending has been brought about by your underlying illness and not by any malicious intent.

15.In coming to this decision, I have taken into consideration the recommendation of the suitability report, and have also considered the guidance provided in Secretary for Justice v Lau Shing Kit [2012] 5 HKLRD 297 and Secretary for Justice v Chau Tsz Tim [2015] 1 HKLRD 853.  This Court accepts that drug trafficking is a truly evil business and that it is the policy of the Courts to render no mercy to those who are involved in it and that deterrence takes precedence over rehabilitation but I am not at all sure that it is an issue of deterrence versus rehabilitation in this case.  This young man is mentally ill and anyone who has first-hand knowledge of those with depressive disorders will know that they cannot deal with it on their own.  It does not go away.  It will never go away and society should be ashamed of itself if it points a finger at someone who was only just 17 at the time of offending and say it is his fault that he was offending and that society requires this offender to be punished by imprisonment only.  There is room for humanity in sentencing when the circumstances warrant it.  A Training Centre Order will be tough.  It is not a soft option but it will better serve your obvious difficulties with authority.  It will ensure you receive proper mental health care.  It will allow you to regain the education you missed and obtain a qualification which would give you employment.  Plus, it will provide supervision and support in the community.  I say again, it is no easy option and it is an exceptional option.  If you were to go to prison for 7 years 4 months, you would serve a sentence in the order of 4 years and 9 months with good behaviour.  Your time in custody to date would have counted against that.  You have been in custody since your arrest in January 2021, a period of 15 months.  You would have approximately 3 years 5 months to serve.  But you would be amongst common criminals older than yourself and many drugs dealers.  They will become your friends whilst inside the prison system and they will inevitably be your support and your mentors.  You would learn how to be a professional criminal.  I do not want that for you.  Your family do not want that for you and your teachers do not want that for you.  This is not simply an issue of your age even though you only reached your 17^th birthday at the time of offending.  That has been accounted for above.  In all other circumstances you would most certainly go to prison.  It is an issue of your mental health.  Society gains nothing by punishment in these circumstances and everything by seeking to support, educate and rehabilitate you.

16.You will receive a Training Centre Order under s4 Training Centres Ordinance, Cap 280.

Mr Dominic Ngai, SPP of the Department of Justice, for HKSAR

Mr Joshua Choy, instructed by Chan Ching Man & Co., for the defendant