HKSAR v. Chan Chi Cheung

DCCC 1056/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1056 OF 2013

____________

____________

______________________________

REASONS FOR SENTENCE

______________________________

1.Chan Chi Cheung you have pleaded guilty to trafficking in 23.94 grammes of a solid containing 18.38 grammes of cocaine, contrary to section 4 of the Dangerous Drugs Ordinance, Chapter 134.

2.In summary the police conducted an anti-narcotics operation along Jordan Road in Yaumatei in the evening of the 7 September last year.  Just after 11 p.m. the police intercepted you and searched the bag you were carrying.  Inside the bag the police found a foam box containing the cocaine.  Under caution you admitted you knew the bag contained cocaine and that you were delivering the cocaine for someone you had known for two weeks in return for a reward of $500.

3.In passing sentence I have carefully considered everything said on your behalf by Mr Chow together with your mitigation letter and one written by your mother.  I take into account you have a clear record.  On being told that you suffer from Bipolar Affective Disorder and that your younger brother suffers from Down’s syndrome I called for psychiatric, psychological and background reports before passing sentence.  I have carefully considered the content of these reports.

4.The reports reveal that you were diagnosed with Bipolar Disorder in 1995 after graduating to secondary school which was about the same time that your school grades began to noticeably deteriorate.  Since then your mental state has fluctuated over the years with repeated psychiatric admissions.  You are prone to poor judgment and vulnerable to negative peer influence.  Your current condition is said to be largely stable.

5.In recent years much of your time has been spent living in half way houses and hostels where you associated with dubious peers and affiliated with triad members who would take advantage of you.  More recently you associated with a friend who abused cough medicine.  Through him you met a group of acquaintances who asked you to deliver the cocaine for a reward of $500.  After release from prison you say you will be more careful in making friends and that you would try get a job. 

6.The courts have equated for sentencing purposes cocaine with heroin (see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69).  In R v Lau Tak Ming [1990] 2 HKLR 370 the Court of Appeal laid down guidelines for trafficking in heroin.  The court said that the sentence upon conviction after trial where the quantity of narcotic is between                 10 and 50 grammes is between 5 and 8 years imprisonment.  I am satisfied the proper starting point after trial for 18.38 grammes of cocaine is 5 years and 6 months imprisonment.   Giving you full credit for your plea of guilty reduces the sentence to 3 years and 8 months imprisonment.

Mental disorder

7.Mr Chow asks that a reduction in sentence should be given on account of you suffering from Bipolar Affective Disorder as this would have affected your judgment at the time of the offence.  Mr Chow also asks that I sentence you mercifully because of your disability and that your mother needs your help in looking after your younger brother. 

8.In HKSAR v Chiu Peng, Richard [2002] 1 HKC 401 the Court of Appeal accepted that a court may properly allow a discount in sentence where a defendant is suffering from mental illness which played a part in the commission of the offence.  The court said the justification for a discount in sentence by reason of mental illness was,

“…as a reflection of diminished criminality or culpability on the part of the accused who has committed a crime under an abnormal state of mind. He knew that it was wrong to commit the crime, but he did not appreciate that the commission was as serious as it was: the degree of culpability was thus lessened. Or, as in this case, the accused’s mental illness made him gullible and easily susceptible to persuasion by the perpetrator of the crime, reducing his responsibility for participating”

9.Chiu Peng, Richard was cited in Secretary for Justice v Hii Siew Cheng[2008] 3 HKC 325 and HKSAR v Chen Xuehui HCCC 19/2012 both trafficking cases.  In Hii Siew Cheng no discount in sentence was given on account of mild schizophrenia but was taken into account in not activating consecutively a 4 months suspended sentence.  In Chen Xuehui the court reduced the sentence imposed after trial by one third where the defendant, who also suffered from Bipolar Affective Disorder, displayed florid symptoms at the time of the offence. 

10.What is clear from these cases as stated by McMahon DHCJ in Chen Xuehui is that in determining whether the illness has affected one’s culpability for the offence requires an assessment of the nature and severity of the illness and an appreciation of the relevance of its symptoms to the commission of the offence.  This is also clearly seen in the Australian cases cited by Mr Chow. 

11.On the other hand the courts have repeatedly said that offences of trafficking are offences of the utmost gravity which may result in mitigating factors having little weight.  Silke VP in Lau Tak Ming put it this way:

“It must be borne in mind that these are offences of the utmost gravity which may well result in mitigating factors which, for less serious offences could lead to a discount, having little weight. By this we mean age and disability - though extreme youth may call for special consideration. Drug dealers are notorious for attempting to elicit sympathy from the Courts for their middlemen by the use of the blind, the maimed, the halt, the young and the aged in the carrying out of their nefarious trade.”

12.The clinical psychologist says the offence was strongly related to your risk-taking attitude and negative peer influence and that there is no indication that the present offence is related to your mental problem.  The background report refers to the medical notes of the Social Worker at the West Kowloon Psychiatric Centre which show that you had been assessed by the Case Medical Officer as mentally settled in the month of September 2013.

13.Further although you told the clinical psychologist you thought the consequences might not be serious it is clear from what you told the probation officer that you committed the offence out of greediness.  As Mr Chow told the court last time you were looking for some fast and easy money.  You clearly knew what you were doing at the time.      

14.However I do not think one can completely overlook that by reason of your mental disability you are more vulnerable to persuasion.  Balancing the seriousness of the offence and the community’s interest in having such offences punished I am prepared in the circumstances to reduce the sentence by 6 months imprisonment to 3 years and 2 months.  You are convicted and sentenced to 3 years and 2 months imprisonment.