HKSAR v. Ng Tsz Kin

DCCC 203/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 203 OF 2015

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REASONS FOR SENTENCE

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1.The defendant (male) (aged 18) pleaded guilty before me to a single charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The subject matter of the dangerous drug is 23.9 grammes of a solid containing 17.8 grammes of cocaine.

Facts

2.According to the summary of facts which has been admitted by the defendant, on 4 January 2015, police mounted an anti-dangerous-drugs operation in plainclothes in Tai Hing Estate, Tuen Mun.

3.At 2132 hours, police attention was alerted when they observed a New Territories taxi LB5034 stopped at a taxi station near the lamppost DD0946, at Tai Hing Estate, Tuen Mun, with its hazard lights on, engine running and a passenger waiting inside.

4.A plainclothes police officer then approached the taxi.  At the same time, defendant stepped out from the right-hand side of the rear door.  The officer immediately revealed his police identity and stopped and searched the defendant.

5.The officer found a Marlboro cigarette box containing one resealable plastic bag containing the suspected dangerous drugs from the defendant’s front right trousers’ pocket together with a mobile phone and also HK$630. 

6.The defendant was immediately arrested and cautioned.  Under caution, he admitted that he was going to sell the “Coke” to make money to support his likelihood and asked for a chance.

7.The market value of the dangerous drugs in question is HK$23,350.

8.The driver of the taxi was also interviewed by the police and he confirmed that he had picked up the defendant about an hour ago at the taxi stand of Tin Shui Wai at Tin Hang Estate.  The defendant then instructed him to drive the taxi to Tin Sum Tsuen at Yuen Long.  The defendant then alighted the taxi and went into a village to collect something. 15 minutes later, he returned to the taxi and further instructed the taxi driver to drive him to Shing Kee Store at Nai Wai, Tuen Mun.

9.There, the taxi driver saw from the rear view mirror that an unknown person came up to the taxi and dropped something into the taxi.  Afterwards, he was instructed to drive to Tin Hing Estate, and on arrival, defendant called someone on his mobile phone and said on the phone that he was waiting at the taxi station. 

Criminal records and the antecedent of the defendant

10.The defendant is aged 18.  In the past, he had three criminal records. When he was in the age of 12, in 2009, he was convicted of burglary, common assault as well as theft for which he was sentenced to a 12 months’ Probation Order with the first 6 months to reside at Tuen Mun Juvenile and Children Home.  However, the defendant was subsequently found to be in breach of the Probation Order and as a result of which, in March 2010, the Order was discharged and in lieu thereof, he was sentenced to the Reformatory School.  

11.The defendant has received an education up to Form 1 secondary level. After dropping out from the school, he largely depended on the family to support his living.  At the time of arrest, he was unemployed.

12.According to the antecedent statement, the defendant also frankly informed the police that he had triad background of 14K triad connection.

Mitigations

13.In mitigation, defendant’s counsel, Mr Steve Chui, had emphasised the fact that the defendant had been very co‑operative and frankly admitted his misdeed to the police officers as soon as he was intercepted.  Mr Chui also emphasised the fact that the defendant was young, only 18, and he had no past similar criminal record.

14.Mr Chui informed the court that the reason why the defendant had committed the present offence is exactly as what he had told the police under caution that he intended to sell the cocaine in question to make money to support his likelihood.  Mr Chui informed the court that the defendant used his savings which he had been obtained from his past employment as an odd‑job worker, a delivery worker and a restaurant kitchen assistant, and used about ten-odd thousand dollars to buy the present quantity of the cocaine with the intention to sell it for a profit of a few thousand dollars.  

15.Mr Chui also said that in fact what the taxi driver had told the police was correct and that the defendant had obtained the supply of the drugs from someone before the taxi returned to Tai Hing Estate where he was actually waiting for a buyer to pay for and collect the drugs.

16.Mr Chui had also submitted to the court for consideration two mitigation letters, one written by the defendant himself and one written by the parents of the defendant who are also in court today to support their son.  I am not going to refer to the details of these two letters.  Suffice it to say that the defendant has expressed his remorse in his letter saying that he had learnt the lesson in a hard way and he felt very ashamed and sorry to his family members.  He vowed that he will find a decent job after release from the prison but in any event he still hopes the court can pass a lenient sentence. 

17.The parents of the defendant have said that the defendant is of a good nature but then due to loose supervision and the influence of the bad peer group, he had gone to the wrong track.  They have promised the court to supervise the defendant and ask the court to be as lenient as possible and give him a chance for rehabilitation.

Sentencing considerations

18.In sentencing the defendant, I have taken into account the facts of the case, the quantity of the drugs involved, the mitigations made on the defendant’s behalf by Mr Chui as well as the Court of Appeal’s authorities in trafficking.  In particular, I have referred myself to an application for review in Court of Appeal recently, namely, Secretary for Justice v Chau Tsz Tim & Secretary for Justice v Ho Wan Chiu (CAAR 4/2014 & CAAR 5/2014).

19.In these two cases, the Department of Justice applied to review the sentences passed by the District Court in respect of two young defendants who were convicted of drug trafficking.  The District Court had imposed training centre orders in both cases, and as a result of the review hearing, the Court of Appeal had set aside the Training Centre Orders and imposed immediate imprisonment terms.

20.I can do no better than refer to paragraphs 29 to 31 of the judgment:-

“29. Drug trafficking is an evil business and the courts have repeatedly emphasized that whoever carries on such an evil business, irrespective of his/her background or the circumstances in which the offences are committed, can expect no mercy, otherwise the “aged”, the “young” or the “crippled” will be encouraged to take part.

30. Young age is very often a mitigating factor, particularly in trivial offences, and it is generally considered more important to rehabilitate a young offender than to severely punish him as a deterrent. There is also no doubt that the court must exercise great care before committing young offenders to prison.

31. However we are dealing with serious drug trafficking offences and in respect of such offences the courts have said that the public interest requires that deterrence of other potential offenders must take precedence over the rehabilitation of the particular offender before it. It is, therefore, not in the interest of the community to sentence even young offenders of serious drug trafficking offences to the Training Centre.”

21.In this case, the defendant had never been sent into prison before although he had three criminal convictions.  In the past, the defendant had been given a lenient sentence such as Probation Order.  However, one can glean from his criminal record that he did not treasure this opportunity by the court, and in the end, because of the breach of the Probation Order, he was sentenced to the Reformatory School.  Sadly in his case, the defendant still did not mend his way after his release from the Reformatory School.  The defendant had already admitted that he had triad background although Mr Chui told the court that he is not an active member.

22.The defendant is only 18 years old but he is not extremely young.  Based on the authorities, I can see no exceptional circumstances in his case to consider any option other than immediate custodial sentence. 

23.As Mr Chui had also rightly pointed out, in relation to trafficking in cocaine, there is a clear guideline from the Court of Appeal.  According to Attorney General v Rojas [1994] 1 HKC 342, the sentencing guidelines for heroin are applicable to cocaine.  In relation to the trafficking guideline in heroin, for a quantity of dangerous drugs between 10 to 50 grammes, the starting point is 5 to 8 years’ imprisonment.

24.The present quantity of the dangerous drugs is 17.8 grammes of cocaine.  According to the above guideline, the starting point should be one of 5½ years’ imprisonment and I shall adopt this as the starting point.

25.I of course have much sympathy for the parents of the defendant, but because of the authorities, I can do nothing but to sentence the defendant to prison because of public interest.

26.The defendant pleaded guilty which is the only mitigating factor I can see in this case.  After the full one-third deduction, I shall sentence him to imprisonment for 44 months, and that is 3 years and 8 months.