HKSAR v. CHAN MING FUNG

DCCC 663/2023

[2024] HKDC 1806

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 663 OF 2023

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REASONS FOR SENTENCE

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1.  The defendant today has indicated and made a plea of guilty to one offence of trafficking in a dangerous drug which occurred on 20 December 2022 in a private car on the Tsing Kwai Highway in the New Territories. The defendant has admitted to trafficking in a total of 30.4 grammes of cocaine.

2.  The facts are very simple and I shall shortly summarise them.  The defendant was in fact a passenger in a car driven by another man on the occasion which was on 20 December 2022 in the late afternoon.  The defendant was in fact the only passenger on the vehicle.  A search of the vehicle discovered the drugs and also some other items of little consequence such as cash and mobile phones.  The defendant has admitted as part of his mitigation that he assisted in trying to conceal those drugs and acted in some way in some capacity as a courier of those drugs.

3.  The defendant himself in terms of sentencing is a young man, he is only 19 years old.  He is a person of clear record with an education up to about Form 3 level.  I obtained a background report on him.  It would appear to show that he went somewhat, I think the expression colloquially would be “off the rails” around about Form 3 when he fell in with bad company including the person who is jointly charged in respect of this particular offence.  He has worked as a kitchen assistant since his arrest and in fact I understand the defendant has been on bail until sentencing.

4.  The most relevant factor in terms of sentencing today is of course the quantity of drugs concerned.  The trafficking in the drug cocaine is subject to guideline sentencing and the appropriate guideline can be found to be the same guideline as that for heroin and that can be discovered in the case of R v Lau Tak Ming in the [1992] HKLR 370.  The defendant will fall within the second band of that guideline where the quantity of drugs ranges between 10 to 50 grammes and the sentence should range between 5 to 8 years’ imprisonment. 

5.  Now it was helpfully reminded in mitigation in the case of HKSAR v Herry Jane Yusuph, that is at [2021] 1 HKLRD 90, which sets out a six-step approach towards sentencing.  Of course the major step to be taken is to identify where along the guideline the starting point for sentence should lie. The quantity of drug being 30.4 grammes of cocaine puts it towards the middle part of the guideline which would lead on a mathematical calculation to a sentencing starting point of around about 6½ years or 78 months’ imprisonment. That of course is not the be-all and end-all of sentencing and Yusuph makes that clear.  The case of Yusuph makes clear that any sentence of this court should not just be guided by the guideline but should take into account other factors, factors relating to the defendant as well as factors relating to the offence.

6.  The defendant’s role in the offence is a very simple one, a very limited one, certainly not involved as a mastermind or anything like that.  The factors that I must consider in sentencing to reach a fair, just and balanced sentence in respect of this defendant are the personal mitigating factors that exist in respect of him.

7.  The most obvious mitigating factor that I am dealing with here is the defendant’s age.  He is very young.  At the time of the offence he was round about 18 years old and it is his first offence.  I have obtained a background report on him.  The general tenor of the background report is positive.  It appears he just at a certain point of his life fell in with bad company and had a very low sense of what his legal responsibilities were.

8.  As far as the sentence is concerned it must be of course be a sentence of imprisonment.  The statutory approach can be found in Cap 200 which would enable the court to take another approach irrespective it is not permitted in dangerous drugs cases and there is authority for that in Secretary for Justice v Ko Fei-tat [2002] 4 HKC 59.  Nevertheless, the court will take into account and should take into account the personal mitigating factors that exist within this defendant.  Beyond his age and the fact that it is his first criminal offence that he has committed, there is an indication by the defendant that he would assist the prosecution in giving evidence were a trial ever to take place in respect of the other defendant in this case.  I have been told by the prosecution that a statement has been made by this defendant but how far that will practically go at this stage the court is not able to give any final assessment.  Simply I will take into account that he has indicated a willingness to assist the prosecution.

9.  Now as I said, the mathematical starting point is one of 6½ years.  The question is to what extent do I reduce that starting point to represent the three factors that have been put before me which is the defendant’s age, the defendant’s clear record and the defendant’s assistance to the prosecution limited though it may be.

10.  The defendant’s age is in my view a very significant factor here.  He is a very young man and it must be represented in the sentence I impose and also must be represented in the fact that he is of clear record.  I shall to represent that factor deduct the sentence from the original starting point of 78 months by a total of 9 months reduction for that factor.  I shall also give a further 3 month deduction for the fact the defendant has indicated a willingness to assist the prosecution.  That means that from the original starting point of 78 months I will reduce his sentence by a further 12 months to indicate those mitigating factors.  That now leaves you with a starting point of 66 months’ imprisonment.  The defendant is entitled, he had made a timely plea, he is entitled to a full one-third deduction from that.  That would lead to a final sentence of imprisonment of 44 months’ imprisonment on this charge.