HKSAR v. Shum Ka Cheong

HCCC292/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 292 OF 2008 

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Before:  Deputy High Court Judge Line

Date:    11 February 2009 at 10.01 am

Offence:  Trafficking in a dangerous drug (販運危險藥物)

Transcript of the audio recording
of the Sentence in the above case

COURT:  Stand up, please.  I have to sentence you for trafficking in dangerous drugs.  The drug in question was heroin, and you were caught carrying 463 grammes of it.  

It will have been explained to you that courts in drug trafficking cases follow guidelines based on the nature and weight of the drug in question.  For an adult caught doing what you were doing the starting point for sentence would have been at least 15 years’ imprisonment.  

However, the fact is at the time of the offence you were 15 years and 2 months old.  The courts for a long time in Hong Kong have recognised that there is an urgent need for consistency in drug sentencing, but it is subject to allowing mitigation for what has been characterised as “extreme youth”.  What can be called “extreme youth” varies from case to case.  It is not just a question of looking at a date of birth.  Someone who is aged 15 years and 2 months may or may not fit that description. 

In my judgment, however, on the material available to me, I judge that you do fit that description and accordingly attract the mitigation available to it.  I come to that judgment based on all the material available to me, which includes the facts of the case, but specifically the opinion expressed in the background report from the probation officer, that: at paragraph 6, you were childish and immature; and at paragraph 12, you were characterised as being immature and simple-minded, susceptible to the influence of undesirables.  To that is the picture painted of your general background, which shows that you came from a background where the offer to carry a plastic bag for $5,000 became a particularly attractive one, you never having had more than a few dollars in your pocket at the best of times as pocket money. 

What I shall do, therefore, to acknowledge the mitigation of extreme youth that exists in this case is to reduce the starting point.  There are no hard and fast rules about the size of such a discount.  It is one of the areas of sentencing where judges are left, in fact, to judge.  One of the factors that is engaged in such an exercise is looking how the extreme youth addresses the actual facts of the case.   

One of the reasons that extreme youth is a powerful mitigating factor, or can be, is that the person in question lacks the maturity to deal with the facts that lead to the crime.  If you had carried a pistol and taken it into a shop and pointed it at the shop assistants in order to carry out a robbery as, I take as an example, appears in some of the cases we have looked at this morning, then I would not give you such a big discount for the obvious reasons that you could have been 10, 12, 13, 14 and still known the gravity of such conduct.  But the facts of your case: there is a 15-year-old immature childish boy; dazzled by the reward of $5,000; and just asked to carry a plastic bag. 

I accept what is urged by Mr Yu on your behalf, that at the time you agreed to do this you did not know the nature of the drug inside the bag and you did not know its quantity.  That is true of many drug trafficking cases where adults are involved, but that will provide no mitigation for them because they knowingly take the risk and have the maturity and the foresight to deal with that dimension.  I am not saying you lack the mental equipment and the maturity to deal with it completely, but I judge that you did lack those qualities to deal with it adequately. 

Consequently, in your case I shall give a generous discount for the extreme youth.  I shall take a starting point of 10 years' imprisonment.  In Hong Kong terms I expect that could be seen in certain quarters as a lenient course.  But sentences of imprisonment in double figures for boys who are just 15 years and 2 months at the time of their crime is, I would have thought, still substantial and does balance the public interest in this case in these courts being seen to be and being hard on the trafficking of heroin, because these cases are all about balance.

Having taken that starting point of 10 years, you earn a third discount for your early plea.  You pleaded guilty in the magistrates' court -- no, you did not plead guilty there.  You would have pleaded guilty in the magistrates' court but for your age.  Giving you the third discount produces a sentence of 6 years and 8 months.

You are still only 15.  One of the considerations that has occurred to me in determining the length of your sentence is this: that if you behave yourself - and the indications are from the background you are the sort of a boy who will - then you would be released before you reach the age when you will transfer to an adult prison.  Mr Yu on your behalf realistically acknowledged that he could not ask that I make a training centre order.  The facts of the case are too grave for that.  It has to be imprisonment and it has to be significantly longer than the incarceration that follows a training centre order.  A sentence of 6 years and 8 months in your case I judge to fit that criteria.  It is in fact designed to be a lenient sentence, although I appreciate in terms of a 15-year-old the idea of 6 years and 8 months stretches far, far into the future.

For the reasons Mr Yu described in his mitigation on the last occasion, you did not do well at school.  There is in this an opportunity in a young person's prison to educate yourself.  I hope you do so.