HKSAR v. Chau Man Chun

DCCC 776/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 776 OF 2014

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Reasons for Sentence (for D2)

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1.There are two defendants in this case. D1 pleaded guilty to his charge of trafficking in dangerous drugs contrary to s.4 of the Dangerous Drugs Ordinance, Cap.134 on the first day of trial and was sentenced on the same day.

2.D2 was convicted after trial of his charge of attempting to traffic in dangerous drugs. This Reasons for Sentence deals only with D2 on charge 2.

Outline of facts

3.Patrolling Police officers spotted 2 men in the sitting-out area at the junction of Shanghai Street and Shan Tung Street at around 11:34pm on 7 June 2014. One of the men was seen counting money. When the Police officers approached them to investigate, they turned and walked away. The officers shouted for them to stop and they did. Upon search, a transparent re-sealable plastic bag containing crystallized substances was found from the bag that one of the men was carrying. Police officers suspected them to be dangerous drugs and declared arrest and cautioned that man. It is not disputed that this man was D1.

4.Under caution, the other man said that someone gave him $7,500 to get some ‘coke’. The Police officer asked that man if by ‘coke’ he meant cocaine and that man said ‘yes’. Police officers thereby declared arrest on him for trafficking in dangerous drugs and cautioned him. At a subsequent video recorded interview, this man confessed that he was offered $1,100 by someone to collect cocaine from D1 that night. It was held after trial that this other man was therefore attempting to traffic in the dangerous drug that was found on D1 at the time of their arrest. D2 is this other man.

Previous convictions

5.D2 is of previously clear record.

Mitigation

6.D2 is 17 years 3 months old, a student. D2’s parents are divorced and he lives with his mother. Mr. Ho did not provide anymore of D2’s personal background in mitigation.

7.Mr. Ho referred to the Reasons for Sentence for D1 in this case and expressed his agreement with the authorities cited there. Mr. Ho also agrees that for the amount of cocaine involved in the present case, a proper starting point under the tariff sentence would be around 69 months’ imprisonment. Mr. Ho urge the court to take into consideration the defendant’s relatively young age and his previously clear record when sentencing.

Sentence

8.The maximum sentence for trafficking, and therefore attempting to traffic, in dangerous drugs on conviction on indictment is that of a fine of $5 million and imprisonment for life.

9.Sentencing guidelines for trafficking in heroin as set down in R v Lau Tak-ming [1990] 2 HKLR 370 was held to apply to trafficking in cocaine as well in the case of Attorney General v Pedro Nel Rojas [1994] 1 HKC 342. The tariff sentence for trafficking in cocaine of a quantity between 10 and 50 grammes is that of 5 to 8 years’ imprisonment.

10.Trafficking in dangerous drugs is an excepted offence and as such s.109A of the Criminal Procedure Ordinance, Cap.221 does not apply and imprisonment need not be the last resort when sentencing D2 who is below 21 years old.

11.I find that D2’s age is not so young as to be capable of being categorized as ‘extreme youth’ and will not be given much weight in mitigation. In the case of Attorney-General v Kong Kin-man [1997] HKLRD 350, it was stated that:

“(2) Age, whether youth or old age, carried little weight in drug trafficking offences. It was only in rare cases that detention in a training centre was appropriate on a conviction for drug trafficking (A-G v Suen Yuen Ming [1989] 2 HKLR 403 followed). There was a considerable public interest involved in showing by deterrent sentences that the courts would treat drug trafficking most severely.”

12.I find that there is no point in calling for a background report since, based on Mr. Ho’s submissions in mitigation, I can see no exceptional circumstances that would allow me to depart from the sentencing guidelines.

13.I do note that in the present case, the facts that I have found proven tend to show that D2 was acting as a courier for someone else, so that he could earn some quick money.

14.Yet, it is exactly with the help of young people like D2 that those running the drug scene could hide behind the front line and minimize their risk of being caught red-handed. There is a very strong need for a deterrent element in the sentence, so that the young people who are tempted to make a quick buck would be under no illusion as to the seriousness of their actions and the consequences that they will face, despite their relatively young age.

15.I would adopt a starting point of 69 months’ imprisonment for the 22.34g of cocaine.

16.Although the defendant’s age does not fall into the ‘extreme youth’ category and the authorities suggest that age should carry little weight in mitigation, I will nevertheless reduce the starting point by 3 months on account of the defendant’s relatively young age as well as his clear record.

17.Since D2 is convicted after trial, there is no further discount and he is sentenced to 66 months’ imprisonment.