HKSAR v. CHENG CHUN SING

DCCC771/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 771 OF 2010

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Reasons for Sentence

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1.   The defendant pleaded guilty to a charge of trafficking in a dangerous drug involving 20.02 grammes of ketamine.

2.   According to the brief facts admitted by the defendant, the defendant was arrested at the junction of Ngau Tau Kok Road and Hong Ning Road at about 9.30 pm on 12 May 2010.  He was arrested obviously because he was acting very suspiciously.  The police stopped the defendant, searched him and found in his trousers pocket two plastic bags of ketamine.

3.   The Government Chemist certificate confirms that the total quantity of ketamine that was found on the defendant’s person is 20.02 grammes of ketamine.

4.   The defendant, under caution, admitted to the police he was at the time delivering the ketamine for a person called “Ah Kiu” for a reward of $200 only.

5.   The defendant is only 20 years of age, but he has already got one previous conviction for possession of a dangerous drug in June 2008, for which he was sentenced torehabilitation centre. But that apparently was not sufficient to deter the defendant and it did not bring a ring of alarm to the family as well.  Therefore, it is not surprising that the defendant finds himself in trouble today with a dangerous drug charge again.  The only difference is, today he is facing a sentence which is a lot more serious than the sentence that he got on the last occasion.

6.   According to the guideline case, Secretary of Justice v Hii Siew Cheng, CAAR7/2006, for this quantity of ketamine in relation to a trafficking charge, the sentence can be as high as 4 to 6 years.

7.   From  my point of view, this is a very heavy sentence.

8.   The defendant, as I earlier observed, apparently did not take the last conviction as any sort of a deterrent.  In less than two years’ time, he committed an offence which is a lot more serious than the previous one.  It is really unfortunate that the defendant did not learn his lesson from his last conviction, and it is perhaps even more unfortunate that the family did not learn a lesson from the last conviction.

9.   The family and the defendant may labour under a wrong impression that the defendant was young back in 2008, therefore he was naughty, in the layman’s sense, and he would become good one day naturally.  But the truth is just the reverse.  The defendant has upgraded his criminal activity.  He is no longer a possessor.  He is a drug trafficker, only at the age of 20.

10.   I am told by Miss Liang, solicitor acting for the defendant’s behalf, that the whole family is behind the defendant.  The parents are here today to show their support. 

It is unfortunate that the parents perhaps only see fit to be present when the son is in trouble.

11.   The defendant clearly had some problems. At the age of 18, he became a father of a baby daughter.  In modern times, this is rather unusual.

12.   What it shows to this court is this: there is a complete lack of discipline in the family.  The defendant apparently enjoyed unlimited freedom, so much so that he was free to bring his girlfriend in to live with him as well as his family in a small public housing unit.  This happened when the defendant was not even 18.

13.   I am told the whole family suffered because of the defendant’s commission of this offence.

14.   The mother has written a letter to this court. I can see that it is a very genuine letter.  I can believe that this is the sort of letter that can only be written by a mother who genuinely loves her son, but is the love not coming a little too late?

15.   The mother, in the letter, gives the defendant very favourable comments.  She regards the defendant as a very responsible and filial son.

16.   While I can accept perhaps the defendant, to a certain extent, can behave as a nice son, what has escaped the attention of the family was the fact that the defendant had affiliated himself with ketamine as far as two years back.

17.   I am told that the defendant takes ketamine only once a week, but he is not addicted.  While he was in custody, he has not suffered any withdrawal symptoms.

18.   I cannot accept that is the true position.  Clearly the defendant is relying on ketamine.  Someone who does not require ketamine would not take ketamine once a week.  That is addiction.  How could a family possibly fail to notice that a young son in his teenage is using ketamine once a week?

19.   The whole family will run into a lot of chaos, no doubt, because of this conviction.  How are the grandparents able to raise the little daughter of the defendant?  This little girl has no mother and she is now losing her father for a substantial period of time.  What has actually happened to this family?

20.   The defendant, in his letter, perhaps makes the most correct admission himself.  In this letter, the defendant says he is not asking for this court’s leniency or to spare him with any sort of sentence.  He describes himself as someone who cannot face his family or even the court, but in this letter the defendant asks me to take into account his family circumstances when approaching the question of sentence.

21.    Where is the logic here?  Who is the one guilty of bringing all the chaos to the family?  The answer is more than obvious.  It is the defendant himself.  How can you possibly ask this court to be lenient with your family when you are the one who has actually caused all the hardship to them?

22.   Miss Liang, acting on behalf of the defendant, has already made a very genuine case of mitigation.  She is also pragmatic, because she is not asking this court not to send this defendant to prison, but she has the heart here because she asked this court to look at this young man and to give this young man a chance, when this young man truly regrets what he has done.

23.   I must say, in normal circumstances, I would have no hesitation to accept this is the correct position.  This court will not sentence a young man to prison unless there is really no option available, but I have to tell the defendant that, perhaps, this is one of those occasions when this court is faced with no real option.

24.   If I give you a very lenient sentence, all the syndicates will be able to tell other young people that by delivering drugs for them, at the end of the day, it is not such a serious matter, and as a result, very naturally more and more youngsters will be used in drug trafficking activities.

25.   I have sympathy for the defendant’s family. I do not have sympathy for him.  He is no doubt a young man, but you cannot always put up an excuse that you are young, therefore whenever you make a mistake, other people will have to give you a chance.  You have to grow up one day.  You have to be mature one day.

26.   I have extra sympathy for the younger siblings in the family, and in particular, the 2-year-old daughter.  They are not to be put in this position.  They should be able to enjoy good parental care and love without fear of losing a member of their family.

27.   Born in a poor family is no excuse to commit offences.  There is no equation between the two, and, in fact, this court has a lot of experience in the past that many people who come from difficult families have become even more determined to strive for their best in all respects, and very often these people at the end of the day achieve very distinguished achievements in their career and in their profession.  Some of them have made enormous contribution to the society and have been highly regarded by all the public as a whole.

28.   The defendant may feel aggrieved because he was born in a family lacking wealth, but you have to be realistic, because it is no fault of your parents to bring you to a family with no wealth, and equally I do not expect your daughter will one day complain that because of you she was born in a family of difficulties.

29.   The defendant should have learnt his lesson two years ago.  The defendant should have put a halt to his criminal activities and, very unfortunately, the defendant apparently did not do so.  A young man at the age of 20 nowadays may be enjoying their good university life, but the defendant is not able to enjoy that, at least for the near future.

30.   I have given very serious consideration to this case.

31.   If I am given a free hand, perhaps I would be more inclined to adopt a more lenient sentence, but there are sentencing guidelines.

32.   I accept what Miss Liang has submitted.

33.   Guidelines remain guidelines.  There must be good reasons to depart from guidelines, otherwise what is the purpose of laying down guidelines?

34.   An imprisonment term for between 4 and 6 years is the likely bracket which is applicable here.

35.   I have been trying very hard to see if I can find any additional mitigation in the defendant’s favour, but very unfortunately, I find very little in your favour.  When you embarked on your expedition of being a courier for a drug syndicate, you had already made a wrong decision, so wrong that a court that has to deal with your sentence ultimately will be hand-tied.

36.   Having said all this, the defendant is still a young person.  He comes from a family full of problems and he has created more problems for his family.

37.   In the circumstances of this case, the most lenient starting point that I can adopt is one of 4 years’ imprisonment. Otherwise, if I adopt an even lower starting point, I would be failing my duty.

38.   Your plea of guilty to this charge can earn you

one-third discount. One-third in this case means 16 months’ imprisonment, which is a lot, and I really hope that you take this chance, if you consider it to be a chance at all.

39.   I hope I can, in the future, prove myself right in giving you a more lenient sentence.

40.   You are only 20 today.  I would expect you to be discharged in less than 2½ years.  By then, you are still very young.  You still have a lot of future ahead of you.  If you are genuine about your remorse, and you are genuine about the love and care that you have for your family as well as your little daughter, it is not too late for you to start afresh.  If you are silly enough to get yourself into similar trouble again with the law, nobody will be sympathetic and you cannot earn any more sympathy.

41.   You have a lot of responsibility on your shoulders, that I can see, but that is the challenge ahead of you.  You have to face up to this challenge.  You have to beat the challenge to be a good and useful person again.

42.   Your parents here are telling me that they are concerned about you.  They may not be good parents in the sense that they do not know how to teach you, to educate you, but I can see that their love and care for you is beyond limit.  Please do not abuse that sort of love and care.

43.   Back to the sentence of this case.

44.   I have given consideration to all the circumstances relevant to sentence, and I have considered your solicitor’s submissions. 

45.   At the end of the day, I am persuaded, at least to the extent that I should give you a lower starting point so that you can be discharged sooner.  The sooner you are discharged, the better from my point of view.

46.   I take 4 years as the starting point here.

47.   I give you one-third discount for your plea of guilty; the sentence is therefore reduced from 48 months to 32 months.

48.   I am sorry to say that I cannot find any other valid mitigating circumstances.

49.   The sentence therefore stands at 32 months.