HKSAR v CHONG CHIN TIM

DCCC 122/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 122 OF 2013

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REASONS FOR SENTENCE

1.  The defendant pleads guilty to one charge of trafficking in 19.02 grammes of a solid containing 17.75 grammes of cocaine, contrary to section 4 of the Dangerous Drugs Ordinance, Chapter 134.

2.  In summary in the early hours of the 12 October last year the police conducted an anti-narcotics operation at Amoy Garden in Ngau Tau Kok.  At 4.10 a.m. on seeing the defendant acting suspiciously the police approached and intercepted him.  Underneath the waist band of the defendant’s shorts the police found a large transparent plastic bag inside which was 85 plastic bags containing the cocaine.   Under caution the defendant said he sold the cocaine to earn money.

3.  The courts have equated for sentencing purposes cocaine with heroin (seeAttorney General v Pedro Nel Rojas [1994] 2 HKCLR 69).    InR v Lau Tak-ming[1990] 2 HKLR 370 the Court of Appeal laid down guidelines for trafficking in heroin.  The court said that the sentence upon conviction after trial where the quantity of narcotic is between                 10 and 50 grammes is between 5 and 8 years imprisonment.  I am satisfied the proper starting point after trial for 17.75 grammes of cocaine is 5 years and 6 months imprisonment.

4.  The defendant is only 17, 16 at the time of the offence. Section 109A of the Criminal Procedure Ordinance, Chapter 221 provides no court shall sentence a person of or over 16 and under 21 years of age to imprisonment unless the court is of the opinion that no other method of dealing with such person is appropriate.  This provision however does not apply to trafficking in a dangerous drug, which is an excepted offence. 

5.  Nevertheless I called for Training Centre and background reports to provide me with further information about the defendant, warning the defendant that even if training centre was recommended this did not mean I was going to impose a training centre order.  The appeal courts have made clear that save in very rare cases a training centre order should not be imposed for trafficking in substantial quantities of dangerous drugs (see Secretary for Justice v Ko Fei Tat [2002] 4 HKC 59).

6.  I have carefully considered everything said by Mr Tse on behalf of the defendant together with the content of the various certificates submitted to court.  In particular I take into account that sadly the defendant’s father passed away in 2010 and his mother in July 2012.  Although the defendant cannot be said to be of extreme youth, I take into account his young age and that he has no previous convictions for drug offences. 

7.  The reports reveal that the defendant’s secondary school performance was poor.  The defendant failed most subjects in Form 2.  Misconduct included playing truant and bullying classmates.  At this time the defendant began to mingle with triad members of the Sun Yee On.  Their influence ultimately led the defendant in May 2010, shortly after the passing of his father, to committing offences of theft, blackmail, claiming to be a member of a triad society and common assault.  The defendant was placed on probation and initially showed significant improvement in his academic studies.  However on being promoted to Form 3 the defendant once again associated with his dubious peers and his performance deteriorated.  Soon after the probation order expired the defendant dropped out of school in January 2012 without completing Form 3.   

8.  After leaving school the defendant worked variously as a hawker, a shop attendant and an apprentice vehicle worker.  In July 2012 the defendant’s mother passed away. Not long after in October the defendant out of his thirst for fast and easy money to support his lifestyle agreed to sell dangerous drugs. 

9.  Whilst on remand the defendant has not conformed to the institutional rules and regulations resulting in loss of remission and privileges.  During his interview with the Rehabilitation Assessment officer the defendant held a carefree attitude and showed no sense of remorse for his wrongdoings. 

10.  Even though a period of disciplinary training is recommended by both the Rehabilitation Assessment officer and the Probation officer, I am satisfied after very careful consideration that this is not one of those very rare cases where training centre would be appropriate.  Although young the defendant was willing to sell dangerous drugs in order to earn fast money to sustain his lifestyle and has shown no real remorse for his offending.  Notwithstanding the defendant’s young age I am satisfied there are no exceptional circumstances warranting departure from the guidelines.

11.  Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 3 years and 8 months imprisonment.