HKSAR v. WONG SZE YUEN

DCCC179/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 179 OF 2010

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Reasons for Sentence

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1.  Let me begin with this. The main theme of all the mitigating factor is based on the false hypothesis that I can somehow deter you from reforming yourself, which is totally wrong. I cannot give you any chances to reform. The only person who can give you a chance to reform is you yourself. I can only pass a lenient sentence as far as I see fit. All these mitigating factors did not plainly spell out this sort of question. They can certainly say, “Please be lenient.” That is all.

2.  There was a time that the court had been lenient to young offenders, one of age like yours, even for trafficking in drug offences. That prompted the Court of Appeal to lay down guidelines on an application of review of sentence by the Attorney General. One of the main considerations is quantity of drug involved in the trafficking. In your case, the sentence range from 2 to 4 years. The quantity of drugs involved in this case is over 9 grammes and close to the limit of the bracket of 10 grammes.

3.  In determining the starting point, I will for the time being ignore the aggravating feature that a minor was involved because it would only be proper to leave it, until I deal with the question of enhancement of sentence. Artificially, I should determine the sentences now without taking into account the aggravating feature. And then I would decide on whether the aggravating feature should increase your sentence and by how much, if it is proper to do so.

4.  The Court of Appeal when it laid down the guidelines clearly had in mind that the quantity of drug involved should play a vital part in determining the length of a sentence.

5.  While your counsel suggests that it should be in the middle, between 2 and 4 years, but if we apply a linear proportion to this bracket, you shall receive a sentence close to 4 years if not 4 years. But I have to take into consideration of other factors. I do not believe we should apply the linear scale. When determining the sentence, you should take into consideration other factors.

6.  First of all, the mode of trafficking is the most common, the most trivial in the sense of peddling drug. You yourself is of young age. You yourself is susceptible to control by other more culpable traffickers up the chain of supply.

7.  And I must say there are no other mitigating factors insofar as the starting point is concerned. All those factors which could be mitigating factors had been used once. And you have been treated leniently when you committed burglary. Your family always lend you support. I am sure similar mitigation has been made on your behalf on the last occasion. Mitigation is not some money, not deposit in a bank which would carry interest. Once we have used it, they are gone, or there is not much left behind. I hope, although I have no control, I hope you can avoid using this mitigation. You would not go before the court again and used the same sort of mitigation.

8.  Insofar as the starting point is concerned, I have to consider the quantity of drug which is close to the limit of the bracket. And I have also to consider that you are at the very end of the chain of trafficking and the method of trafficking is not sophisticated. A sentence of 3½ years is an appropriate starting point.

9.  You are entitled to a one-third remission because of guilty plea. For this one-third remission, you do not have to thank me. I have no discretion over this. Even if the evidence against you is strong, if you plead guilty, I have to give you one-third full remission, whether or not you are genuinely remorseful or not. This one-third remission was for your plea which saved the court’s time. But it is trite law for a person who is genuinely remorseful should be dealt with leniently.

10.  So, it is the old practice that if you plead guilty, if the court cannot assess whether you are genuinely remorseful or because the evidence against you is strong -- but nowadays whether or not you are genuinely remorseful, you are entitled to get one-third remission. So, it would only be fair if there is evidence, that you are genuinely remorseful, the court may reduce the sentence to a further extent.

11.  The other factors I have to consider that you indeed have saved some police time when you admitted the offence. You saved their time on investigating into this, the present offence. As I have said time and again, if the two defendants were charged with the same offence - one admitted to the police, saved a lot of police time; the other insist on the innocence and only plead guilty in court - if they were given one-third, the one who had cooperated with the police would have some grievance.

12.  But, of course, there is a limit to this reduction in sentence because you have already been given one-third remission for your guilty plea. And you have some genuine remorsefulness but only some, if I may say so. You admitted that you involved a minor. Because of the remorsefulness you have shown and because of your cooperation with police with the result of saving time on investigating into your own offence, I think you are entitled to an extra 3 months’ reduction.

13.  That is not the end of the matter because the prosecution make a formal application to this court to pass an enhanced sentence because of the aggravating feature. I have not taken it into account yet, namely, you sold drugs to a minor.

14.  There are certain authorities cited to me by prosecution, but your counsel has rightly pointed out it was of different nature because it involved using minors to traffic drugs. In your case, you sold drugs to a minor, which is also serious, if not more serious. The rationale behind the enhancement of sentence must be that minors should not be tempted to use drug, should not be tempted by traffickers to use drug.

15.  From the facts and from the circumstances, it appears that you knew the age of the minor, and the only inference is that you knew each other quite well, if I may say so. I give you the benefit of the doubt. It is not your general plan, I mean, to traffic drug to the minors. It is only a matter of convenience you passed the drug to someone you knew.

16.  Although this aggravating factor is serious, but it is not the most serious of its kind, I would have thought. This is very common for peer groups to sell drugs to one another. Usually, these aggravating factors would be taken into consideration by the court when passing sentence, when deciding on the starting point. There would have been no need for the Ordinance if the court does not make a special point in stressing the aggravating features no matter how technical it was.

17.  It all boils down to the question of how serious the fact that drugs is sold to a minor even by a member of his peer group. My personal view is it is not the sole factor. It is the spirit of the legislation. The legislation spell out such clear terms. I have to treat it seriously. I think your sentence should be enhanced by 3 months. So, a simple arithmetic would be 28 months’ imprisonment.