HKSAR v. CHEUNG CHUN KWAN

DCCC363/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 363 OF 2012

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Reasons for Sentence

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1.  In this case the defendant Cheung Chun-kwan, is charged with one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134. He was convicted upon his plea and admission of facts.

2.  The facts revealed that the defendant was intercepted by the police officers at sometime at 7.40 in the evening on 15 February 2012 in Ngau Tau Kok Road for acting suspiciously.  Upon search, the police found a bag of powder of total weight at  13.7 grammes containing 7.18 grammes of ketamine on his person.  

3.  Under caution, the defendant admitted that he was helping a friend to deliver the packet of ‘K Chai’ for a reward of $100.  The street value of the drug seized was estimated to be $1,755.

4.  The offence of trafficking in a dangerous drug, in particular K Chai, has been considered by the higher courts.  There is a very clear sentencing tariff as set out in the case of Hii Siew Cheng, Application for Review No. 7 of 2006.  The present case of 7.18 grammes of ketamine falls within the bracket of 1 gramme to 10 grammes which warrant a term of imprisonment from 2 to 4 years.

5.  At the time of the offence the defendant was aged 17.   Under section 109A of Criminal Procedure Ordinance, this court is under an obligation to consider if there are any other methods of dealing with the defendant before considering imprisonment as a means to dispose of the matter.  The defendant had also a clear record apart from a binding-over last year in respect of a criminal-damage incident.  For this reason, I have called for reports from the probation officer and the Correctional Services Department.  The assessment officer of the Correctional Services Department set out in his report a rather detailed background and addiction history.  The defendant was brought up in a working-class family, the youngest of five siblings.  The parents’ control or supervision and guidance have been considered insufficient and ineffective.  He was also an underachiever at school.  He joined a triad society and started taking drugs since 2007.  Since late 2010, he left school and started working. The trafficking of dangerous drug was an activity he engaged in order to finance his drug-taking habit.  On this basis, the Commissioner of Correctional Services considered him unsuitable for detention in a Detention Centre or a Training Centre but he is suitable for admission to a Drug Addiction Treatment Centre. 

6.  In a more sympathetic tone, the probation officer similarly set out an account of the defendant’s history.  She pointed out that after the defendant dropped out of school at the age of 14, he had not been gainfully employed most of the time until September last year, when he started to work as a delivery worker.  During the short period between July 2009 and February 2010, he had been outreached by a voluntary organisation, the Hong Kong Lutheran Social Service Evergreen Lutheran Centre. During this period and for short while, the counselling offered and the support offered seemed to have a beneficial effect on him. He had gone drug-free for a time.

7.  The same voluntary organisation visited the defendant during the remand of this case.  The defendant admitted his wrongdoings and was keen to reform himself.  He stated that he was willing to receive residential drug treatment in Ling Oi Centre.  The social worker was of the view that the defendant was not a hardcore drug abuser and that he could benefit from the voluntary drug treatment programme offered.

8.  Mostly based on that, the probation officer was of the view that the defendant was after all not beyond redemption.  She recommended a term of probation for 24 months subject to a number of stringent conditions, amongst which a full-time drug withdrawal treatment programme with the Finnish Evangelical Lutheran Mission Ling Oi Centre. 

9.  In addition, I have received a letter by the Ling Oi Centre explaining the programme there.  I have been informed that the programme would last 12 to 15 months.  Of the first 9 to 12 months, he is to stay in the Sai Kung centre, after which a period of no less than three months in a halfway house.  During his stay, he would be in a primary education programme.

10.  My attention was drawn to the High Court case of Ko Fei Tat [2002] 4 HKC 59.  In this case, the defendant pleaded guilty to three counts of trafficking involving almost 40 grammes of “Ice” and 27 grammes of cannabis and one count of conspiring to supply a further 28 grammes of “Ice.”  The case showed that during an undercover operation in which a policewoman posed as a customer in a Wanchai disco over several weeks where on various occasions, the respondent’s co-accused approached her to sell her either “Ecstasy,” “Ice” and cannabis.  The defendant’s job was to deliver some of the drugs to her.  He was then aged 16 and had a clear record and he was only involved in 4 of the 10 transactions in question.  For these reasons, the trial District Judge sent him to the Training Centre. The prosecution applied to review the sentence order, contending that undue weight had been given to the defendant’s clear record and age. 

11.  The Court of Appeal, noting that the normal tariff for trafficking in 10 to 70 grammes of “Ice” ranged from 7 to 10 years’ imprisonment and that there was repeated commercial trafficking over a period of some weeks by the defendant, was of the view that such facts warranted a term of imprisonment at the upper end of the range.  Mitigating factors such as age and disability should not be significant in cases of this kind.

12.  While the undersigned is grateful that the prosecution drew my attention to this case, in my view, this case is  much more serious than the one at hand.  The present case involved a one-off incident, the tariff for the present quantity ranged from 2 to 4 years.  But for the defendant’s age, I would have adopted a starting point of 3 years, reduced to 2 years to take into account of his guilty plea.

13.  The court in passing sentence ought to make a balanced assessment of the culpability of the defendant, the expectation of the society and the welfare of a young offender. In this case, both the probation officer and the good people in Ling Oi Centre consider the defendant a case where they are happy to take on board to effect his rehabilitation. Bearing in mind the offence itself would normally warrant a term of about 24 months’ imprisonment,  the probation officer suggested probation supervision for the same period of time together with stringent requirement, including his staying in Ling Oi full-time for at least 15 months, the difference the sentence options might not be that big after all.

14.  Taking into account of the facts of the present case, the defendant’s background and age, the optimistic assessment of the probation officer and Ling Oi Centre, I consider a term of imprisonment inappropriate as it serves no practical purpose for his rehabilitation.

15.  The order suggested by the probation officer is stringent indeed, and I do not think that the society would like to see a young man of the defendant’s age be thrust into the criminal justice system so soon without making any effort for his rehabilitation. 

16.  For these reasons, I decided to adopt an exceptional course in my sentencing.  The defendant shall be put on probation for 28 months subject to the following conditions:

(1) he shall complete the full drug withdrawal treatment programme in the Finnish Lutheran Mission Ling Oi Centre;

(2) he shall abstain from dangerous drugs;

(3) he shall submit random urine tests;

(4) he shall be of good behaviour and keep the peace;

(5) he shall work and reside as directed by his probation officer;

(6) he shall keep in touch with the probation officer;

(7) he shall inform the probation officer at once of any change of his residence or employment;

(8) he shall sever association with undesirable peers and obey reasonable directions from supervising probation officer regarding association with person or persons;

(9) he shall observe curfew, if necessary, as directed by supervising probation officer; and

(10) he shall participate in such group or programme for rehabilitation as directed by supervising probation officer.

17.  I would warn the defendant here that this is the last chance he is ever going to be given and it is not an easy option for a probation order.  He is subject to the supervision of the probation officer and if there is anything going wrong and I repeat, anything at all, I will be given a report by the probation officer and he will be brought before me to be sentenced anew.  By then, it is definite that I will be much less sympathetic.