HKSAR v. Chan Yuen Yam

DCCC 406/2023

[2024] HKDC 1842

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 406 OF 2023

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REASONS FOR SENTENCE

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1.The D pleaded guilty to a charge of trafficking in a dangerous drug, namely 11.61 grammes of a solid containing 8.67 grammes of cocaine.

2.At about 0252 hours on 12 August 2022, police intercepted the D outside Yok Yu House in Choi Wan Estate.  He was seen putting his right hand into his right front trousers pocket and then he threw away one transparent resealable plastic bag onto the ground.

3.The bag was found containing 82 small transparent reseabable plastic bags, which contained the dangerous drugs in the present case.

4.Under caution, the D said that the drugs were for his self-consumption.

5.The D had 2 mobile phones and cash of $2,951 on him.

6.The estimated street value of the drugs was around $18,000.

Mitigation

7.The D has a clear record.  He is now 18 years old.  He lives with his family in Choi Hung Estate where he was arrested.

8.He used to work as a part-time worker with a daily wage of $600.  He lost his job in May 2024.

9.He committed the present offence to earn quick money as he started to take cocaine 2 months prior to his arrest.

10.The D has plans in the future after serving the sentence.  He plans to take up evening courses in order to meet the minimum application requirement to apply for courses in the Vocational Training Council.

Sentence

11.According to the case of HKSAR v Lau Tak Ming and others [1990] 1 HKLRD 370 and AG v Rojas [1994] 1 HKC 342 (heroin tariffs applicable to cocaine), for a narcotic content of 8.67 grammes of cocaine, it attracts a sentence of 4 years 7 months (55 months).

12.The D is entitled to 1/3 discount, that comes down to 36 months and 18 days.

13.The Defence accepted that trafficking in dangerous drugs is an excepted offence and I am not obliged to call for pre-sentencing report.  s.109A of the Criminal Procedure Ordinance Cap 221 refers.

14.Nonetheless, The defence urged this court to consider a Training Centre report before sentencing on the rationale that:-

(1)  The starting point is 55 months.

(2)  After 1/3 discount, it arrives at 36.8 months.

(3)  Further 1/3 deduction imposed by the CSD for good behavior and etc.

(4)  The ultimate time spend in custody is around 25 months.

(5)  While the Training Centre detention is a maximum of 3 years and follows by a statutory supervision order for 3 years.

15.According to s.4(2)  of the Training Centre Ordinance, the period of detention should not extend beyond 3 years, provided that the D is not to be released before the expiration of 6 months.

16.That means the D can be released after 6 months detention.

17.In the present case, the sentence after 1/3 discount is 36 months and 18 days.

18.As said, in the case of Secretary for Justice v Chau Tze Tim and Others [2015] 2 HKC, the Court of Appeal said that :-

“Young age was often a mitigating factor, particularly in trivial offence … however, the court was dealing with serious drug trafficking offences and the public interest required that deterrence of other potential offenders must take precedence over the rehabilitation of the particular offender before it. While a Training Centre Order was not a soft option, it did not possess the qualities needed for a deterrent sentence and could be so described by traffickers to entice youngsters to take part.”

“… Training Centre Orders for serious drug trafficking cases were only imposed in “very rare cases when there were exceptional circumstances” (para 35)

19.In the present case:-

(a)  it was not a trivial offence, in fact it is a very serious offence;

(b)  there is no exceptional circumstances in mitigation to warrant a consideration of Training Centre order;

(c)  the D was 16 years old at the time of the offence, he could not be considered as extreme youth.

20.With all these information in mind, I refuse to consider a Training Centre report as the Training Centre order is clearly an inappropriate sentence for such a serious offence and it will send a wrong message to the public.

21.To this end, the D is sentence to a period of 36 months and 18 days.