HKSAR v. CHEUNG TSZ HIN

DCCC 73/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 73 OF 2016

----------------------

----------------------

---------------------

Reasons for Sentence

---------------------

1.  The defendant pleads guilty to one charge of trafficking in a dangerous drug.

2.  On 2 December 2015 at about 1.15 pm, the defendant was stopped and searched by a police officer outside Lok Fu Market at Wong Tai Sin, Kowloon.  From the waistband of the defendant’s underpants were found 22 transparent resealable plastic bags containing a total of 23.3 grammes of a powder containing 9.91 grammes of ketamine.  Under caution, the defendant admitted that he had been asked to bring the drugs from Kwun Tong to Lok Fu.  Two mobile phones and about $3,300 cash were also found in the defendant’s possession.

3.  In a subsequent video-recorded interview, the defendant admitted that he met a person called “Ah Yin” in a game centre.  He picked up the Nokia mobile phone and some ketamine from a flowerbed at Tsui Ping Estate placed by Ah Yin.  He was on his way to deliver drugs to a customer when he was stopped by the police officer.  All the drugs in his possession were for the purpose of trafficking.  The money found on him was earned from delivering drugs earlier on.  He was going to be paid $600 per day for delivering the drugs.

4.  At the material time, the street value of the dangerous drugs seized was about $3,100.

5.  The defendant is 17 years of age, he has a clear record.  In mitigation, Mr Boyton tells me that he came from a supportive family, and in the court the defendant’s ex‑colleagues in the fast-food shop and his family members are here to support him.  Mitigation letters were submitted to the court where the authors all speak highly of the defendant.

6.  This is an excepted offence and therefore section 109A of the Criminal Procedural Ordinance is not applicable.  However, I called for suitability report for detention of the defendant in a detention centre, rehabitation centre and training centre.  I now have the report before me prepared by Mr Patrick Ma.  The report sets out full background of the defendant. 

7.  He grew up in a working-class family.  Though caring, his parents failed to provide him with effective supervision when his behavioural problems started to crop up in his teens.  Due to marital discord, his parents lived separately in late 2014 leaving the defendant under the paternal custody.  The defendant’s academic performance was unsatisfactory since his primaries and he made no improvement after proceeding to his secondaries. 

8.  He turned streetwise and joined a triad society in form one.  Having quit school as a form three dropout in early 2015, he idled himself for a few months before he commenced working in a fast-food shop in mid-2015.  He also consumed ketamine and cocaine occasionally in November 2015.  Due to momentary greediness and also his bad acquaintance with undesirable characters, it eventually landed him in the present offence.

9.  Mr Ma in his report says in view of the defendant’s weak self-control and law-abiding concept, a period of disciplinary training coupled with a term of statutory supervision would be beneficial to him. The defendant is mentally and physically fit for detention in a detention centre, a rehabitation centre or a training centre.  Mr Ma considers that the defendant is more suitable for detention in a detention centre. 

10.  Trafficking in dangerous drugs is a very serious offence.  The Court of Appeal in the case of Hii Siew Cheng[1] sets out the tariff. 

11.  The defendant is a young offender.  It has been clearly recognised that the youth factor may pale into insignificance because of the magnitude of the offence.  Here, I can see that before me is a young man who failing to catch-up his studies, ceased his education at form three. Without any skill of work, he experienced difficulties in finding a suitable and sustainable job.

12.  At the time of the offence he had not reached the age of 17.  This is his first offence.  When he was arrested, he made full confession that all the drugs in his possession were for the purpose of trafficking.  Mr Ma of the Correctional Services Department observed in his report that the defendant was polite, cooperative and had no reservation in the interview.

13.  It appears to me that the defendant is an immature young man, influenced by undesirable characters, who has not stepped on the wrong track for too long.  He needs rehabitation more than a punishment by way of imprisonment so that he can be brought back to the right track.  He is fit for detention in detention centre, rehabitation centre and training centre, though Mr Ma considers that detention in a detention centre is more suitable.

14.  In my judgment, what the defendant needs is not a “short sharp shock” training but a training programme which can provide him a skill of trade so that he can acquire a job more easily and reintegrate into the community after his detention.

15.  I have considered whether a detention order in the training centre is too lenient so that the interests of the community cannot be protected.  Having considered the background of the defendant and all the circumstances of the case, I come to a conclusion that such an order is not too lenient when one picks 45 months as a starting point for the present case, taking into account the youth factor, the one-third discount for his plea of guilty and the benefit the defendant can get from the remission scheme of the Correctional Services Department in the calculation of the actual length of imprisonment. 

16.  In all the circumstances of the case, I am of the view that a training centre order is the most appropriate order I should make.  It is both in the interests of the defendant and the community.  I find that the defendant satisfies all the requirements set out in the case of Wong Chun Cheong[2].  I therefore make a detention order of the defendant in a training centre.

[1] Secretary of Justice v Hii Siew Cheng [2008]3 HKC 323

[2] Wong Chun Cheong v HKSAR (2001)4 HKCFAR 12