HKSAR v. Leung Kang Fung

DCCC 1289/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1289 OF 2010

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Reasons for Sentence

The Defendant has been convicted on his own plea on one count of trafficking in a dangerous drug, contrary to Sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134, namely 12.38 grammes of a solid containing 10.02 grammes of cocaine.

2.Facts admitted by the Defendant disclose that on 7 August, 2010, whilst on patrol in the area of Po Lam Estate, Tseung Kwan O, at about 2228 hours, two police officers saw the Defendant walking towards them outside Po Tai House, Po Lam Estate, Tseung Kwan O. When the Defendant saw the police officers, he used his left hand to cover his left front trouser pocket, lowered his head, and made a right turn. He was intercepted by the police officers, and upon search, an electronic scale was found in his right front trousers pocket and the dangerous drugs the subject matter of the charge, namely 5 plastic bags containing a total of 46 plastic bags of suspected dangerous drugs, were found from his left front trousers pocket. He was arrested and cautioned, and admitted under caution that the drugs was cocaine and he was going to sell them. He asked for a chance and said he would not do it again. The Government Chemist confirmed that there was a total of 12.38 grammes of a solid containing 10.02 grammes of cocaine. The estimated street value of the dangerous drugs in question was HK$8,307.

3.The Defendant is now aged 19 years.

4.Section 109A of the Criminal Procedure Ordinance, Cap. 221, provides that no court shall sentence a person of or over the age of 16 years 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. This provision, however, does not apply to offences of trafficking in dangerous drugs, which is an excepted offence.

5.I have carefully considered all that has been urged by Counsel on behalf of the Defendant as well as the contents of the letter written by the Defendant and the Background Report I had called for. The contents of the Background Report are agreed by the Defendant. He is now aged 19 years and single. He has a clear record, although I am told that he was given a superintendent’s caution in 2006 in respect of an incident at school. He lives with his parents and elder brother. His father is a transportation worker and his mother a housewife, although she has started working since the arrest of the Defendant. Since leaving school in 2008, he had worked at various jobs, but was unemployed prior to the present offence. He was introduced to cocaine by drug dependant friends in around Christmas of 2009, and was taking it twice a week. His elder brother had accumulated gambling debts and owed money to loan sharks who were causing trouble to the family. To earn some quick money to pay off his elder brother’s gambling debts and to support his habit, he committed the present offence. The Defendant now regrets what he did as he has said in his letter and when interviewed by the Probation Officer, as well as by his plea.

6.Apart from his pleas, I see no other mitigating factors which warrant any further discounts.

7.In Attorney General v Rojas [1994] 1 HKC 342, Silke VP observed that the harm of cocaine was closely linked to the harm of heroin and it was held that the sentencing guideline for trafficking in heroin as set out in R v Lau Tak-ming [1990] 2 HKLR 370, was applicable to cocaine. For up to 10 grammes, the sentence is 2 to 5 years’ imprisonment, and between 10 to 50 grammes, it is 5 to 8 years’ imprisonment. Here the quantity of dangerous drugs is 12.38 grammes of a solid containing 10.02 grammes of cocaine. Counsel has asked the Court to consider a rehabilatory sentence.

8.I do bear in mind the classical principles of sentencing and balance amongst the need for rehabilitation, retribution, deterrence and prevention. Whilst rehabilitation for a young offender is always an important consideration, and it also serves the interest of the community, the need for punishment of the offender and deterrence of others must be given due regard, and in most circumstances, for offences of this nature, they best serve the interests of the community as a whole. The appeal courts have made clear that save in very rare cases, a training centre order should not be imposed for trafficking in substantial quantities of dangerous drugs. Here, the quantity is not small. The Defendant would have been fully aware of the gravity of what he was doing and the risks that would be involved if he was apprehended. In my view, the only appropriate sentence is an immediate custodial sentence.

9.I take as a starting point 5 years’ imprisonment, discount it by one third to reflect his plea, and sentence him to 3 years and 4 months’ imprisonment.