COURT: The defendant, Mr Ng Ping-hei, pleaded guilty to one count of trafficking in a dangerous drug during the committal proceedings in the Magistrates Court. The offence is contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.
Trafficking in a dangerous drug is a very serious and socially abhorrent offence. Its evil lies in making dangerous drugs more easily available to the general public by those unscrupulous traffickers who are ever ready to offend the law for quick money. Dangerous drugs do not only ruin the person who is addicted to it but also affect the family of the person. They are also the cause of a lot of crimes affecting society as a whole. This explains why the courts have always taken offences relating to dangerous drugs very seriously.
The Court of Appeal has laid down clear sentencing guidelines for the offence of trafficking in “Ice”. According to AG v Ching Kwok Hung [1991] 2 HKLR 125, if the amount of “Ice” is 10 grammes to 70 grammes the starting point is 7 to 10 years’ imprisonment. The amount of “Ice” involved in the present case was 19.83 grammes. According to the sentencing guidelines, the starting point should be one of about 7 years and 6 months’ imprisonment.
Although the defendant said in the video-recorded interview that the larger packet of “Ice” was for his own consumption, and he would give the four smaller packets of “Ice” to the others free of charge, the court finds this totally incredible.
Being a youngster who had no job it was impossible that he could afford such a quantity of “Ice” and would be so generous as to give part of them to others for free. The court has no doubt that he was delivering the “Ice” for other people for reward and that only a small part of the dangerous drugs was for his own consumption.
Sentencing is of course not an exercise of strict mathematical calculation. It is even more difficult in the present case which involves an offender who is only 16 years of age. For such a youngster, the court has to consider how he can be best rehabilitated. But, at the same time, the court cannot lose sight of the fact that the defendant had committed a very serious offence which would carry a starting point of about 7-odd years’ imprisonment if the offence had been committed by an adult.
As held in the case of AG v Suen Yuen Ming, cited by the defence, when there is an apparent conflict between a young offender’s interests, his rehabilitation, deterrence to him and to others, and the interests of the community, the court must determine how the interests of the offender and the community be best served.
While the court in that case said that it was incumbent upon the courts to be wary and to exercise great care before committing young offenders to prison, it also explained that only in very rare cases could a training centre order be made in respect of offences involving substantial quantities of dangerous drugs.
In the case of Wong Chun Cheong v HKSAR, the Court of Final Appeal laid down guidelines for the making of a training centre order:
(1) The court should first be satisfied that the threshold requirements are met, ie, that the offence is punishable with imprisonment and that the offender is aged between 14 and 21.
(2) The court should then consider whether in the case at hand the interests of the community require that the rehabilitative approach should give way to a punitive or deterrent sentence. If so, the training centre option should not, save in exceptional cases, be adopted.
(3) If it is in the interests of the community to adopt a rehabilitative approach then the court must have regard to the offender’s character and previous conduct as well as the circumstances of the offence in deciding whether it is expedient that he should undergo a period of training in a training centre for his reformation and for the prevention of crime.
(4) Where the circumstances of the offence are such that a training centre order would be too lenient, the court is entitled to reject that option notwithstanding that the offender would otherwise be regarded as a suitable candidate for training.
(5) Similarly, where the offence committed is minor and would not otherwise call for a custodial sentence, detention in the training centre would, save in exceptional cases, be inappropriate, notwithstanding the offender’s suitability as a candidate for training.
In the present case, the defendant is aged 16 years 7 months. He committed the offence when he was about 15 years 11 months old which, in the view of the court, although just falls outside the category of extreme youth, according to the case of AG v Lee Chi Ko [1987] HKLR 1233, it is a factor the court should take into consideration in sentencing.
Due to the young age of the defendant, the present case had first started in the Juvenile Court and was transferred to the adult court when the defendant reached the age of 16 years. If the proceedings had been completed in the Juvenile Court the defendant would have had the benefit of being dealt with there where different sentencing considerations would apply.
According to section 11 of the Juvenile Offenders Ordinance, Cap 226, no young person who is aged 14 years and under the age of 16 is to be sentenced to imprisonment if he can be suitably dealt with in any other way. Due to the time taken for the present case to be prepared, the defendant had lost such benefits.
According to section 109A of the Criminal Procedure Ordinance, Cap 221, no court should sentence a person of or over 16 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.
If the principles in AG v Suen Yuen Ming and Wong Chung Cheong v HKSAR and the relevant statutes are applied to the present case, in the view of the court it is obvious that sending the defendant to training centre is a viable sentencing option that the court can adopt. Although the present case involves a fairly large amount of dangerous drug the quantity was by no means substantial as envisaged in AG v Suen Yuen Ming.
As stated above, it entails a starting point of 7 years 6 months’ imprisonment. If credit is given to the defendant for his guilty plea and taking into account that part of the dangerous drug was for the defendant’s own consumption, he would be sentenced to less than 5 years’ imprisonment.
The defendant would receive a further one-third reduction in sentence for good behaviour in the correctional institution making a final sentence of no more than 3 years’ imprisonment.
If the defendant is sent to training centre he would have to receive disciplinary training in a closed setting for a period of not more than 3 years according to the law. Experience tells us that the training usually lasts for about 2 years. After that he will be subject to statutory supervision for 3 years which means that the defendant will be trained and his conduct monitored for about 5 years. This would no doubt be most beneficial to the rehabilitation of the defendant.
It can also be seen that sending the defendant to training centre may even be harsher than sending him to imprisonment. More importantly, allowing the defendant to reform in a training centre regime is much better than sending him to imprisonment and would benefit him, and society as a whole, better.
The defendant has no previous conviction although he had once been dealt with by a superintendent’s discretion for the offence of obtaining property by deception.
It is the view of the court that with proper training, guidance and supervision, there is still hope that the defendant would turn a new leaf in life. As such, a training centre order would therefore not be too lenient a sentencing option that the court should reject.
Having considered the whole circumstances of the case, the principles in AG v Suen Yuen Ming and Wong Chun Cheong v HKSAR, and the relevant legislation regarding sentencing of juveniles and young persons, the court sentences the defendant to training centre.