HKSAR v. TSUI YU PUN

DCCC 535/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 535 OF 2015

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

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

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

Reasons for Sentence

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

1.  The defendant has pleaded guilty in this case to a charge of trafficking in a dangerous drug.

2.  The facts agreed are very straightforward.  The offence occurred on 16 April 2015, and the defendant was stopped and searched as he walked from the Immigration Departure Hall to the Customs Departure Hall at the Macau Ferry Terminal in Sheung Wan.

3.  In a waist bag a box was found which contained the dangerous drugs.  There were 22.6 grammes of a solid which contained the narcotic content of 12.9 grammes of cocaine.

4.  The defendant later said he had been asked by a friend to take this to Macau.  He would get $300 to $600 for doing it.  It was valued at $22,471, and the defendant admitted he had this drug for the purpose of unlawful trafficking.  As I said, a straightforward case at first sight.

5.  The defendant is aged 16.  At the time of sentencing still he is aged 16.  He has, I am told, a clear criminal record. He is not a drug addict and is in good health, and has been detained since his arrest on 16 April of this year.

6.  The approach to sentencing again can be straightforward in these cases.  The defendant being in possession for the purposes of trafficking of a total of 12.9 grammes of cocaine falls within the clear guideline sentencing.

7.  The operative guideline in a case of cocaine is that that is appropriate for heroin in the case of Lau Tak Ming.  The quantity of narcotic falls within the 10 to 50 grammes, which is a sentence of between 5 to 8 years of imprisonment, and naturally the sentence would be at the lower end or the lowest point on that guideline sentence, given the quantity.

8.  In this case it is urged upon me that an alternative approach can be taken, having regard to the defendant’s youth, and in order to see if an alternative did exist, I obtained a report from a training centre.  There is also a background report obtained on the defendant.

9.  The defendant is still very young, so there is not an awful lot to be said about him.  The background report shows he was brought up in a single-parent family, brought up by his mother.  He was a good student, with outstanding conduct in his primary schools, and fell away as he got older.  He had problems with discipline and changed school a number of times, and finally met up with a bad crowd and ended up in trouble.  The background report said the defendant has obtained insight of his wrongdoing, expresses remorse, and promises to be careful in choosing friends.

10.  The report from the Correctional Services Department is in similar terms but in more detail.  They see that the defendant has also been taken care of solely by his mother, and they also observe his falling away into trouble as he got older.  They analyse his problems as being weak self-control and weak law‑abiding concept, and opined that disciplinary training, coupled with statutory supervision, would be considered beneficial to his reformation.

11.  If the sole factor in sentencing these cases was one of rehabilitation and individual deterrence, the decision of the court would be obvious.  Nevertheless, in cases of drug trafficking, the courts are also enjoined to look at factors of general deterrence, even where young people are involved, and the support for that position comes from the case of Secretary for Justice v Lau Shing Kit, where the matter was examined back in 2012. That involved a 17-year-old boy who trafficked in 183‑odd grammes of ketamine. He was sentenced to be detained in a training centre.  He had already been sentenced to a detention centre.

12.  In that case, the court set out the general approach to sentencing that was expected.  Firstly, that is that drug‑trafficking cases call for a strict policy of general deterrence at the expense of individual rehabilitation.  It has also been said that it is only in rare cases detention in a training centre is appropriate on a conviction for drug trafficking, and back in 2012, in Secretary for Justice v Ko Fang Tat, it was said that:  “Save in very rare cases, a training centre order should not be imposed for trafficking in substantial quantities of dangerous drugs.”

13.  Also it was noted in the case of Lau Shing Kit that the defendant in that case was not a person who was extremely young and was not a person of unblemished character.  In Lau Shing Kit the court said that the approach of training centre in sentence was not the appropriate sentence, but in that case, I note three things.  Firstly, that the starting point for sentence would have been in the region of 8 years’ imprisonment, as opposed to 5 years here; secondly, the defendant in that case was 17 years old, whereas this defendant was just over 16 when he committed the offence; and thirdly, that the defendant in that case was not of unblemished character - he had been sentenced to a detention centre earlier - whereas for this defendant, although wayward as a youth, this is his first criminal conviction.

14.  I also note the expression “a substantial quantity of drugs” is referred to in the authorities.  In Lau Shing Kit it was a quantity that could have led to a starting point of 8 years’ imprisonment.  As I have said, this case is within the 5 to 8 years’ imprisonment range, and must lie at the bottom of that range.

15.  The court can also indulge in a mathematical process to see what kind of sentence would be served by the defendant were he to be sentenced to imprisonment as an adult offender.  He would be entitled to a reduction of one-third, which would put the sentence to around 40 months’ imprisonment.  There is also a question of remission which could and normally would lead to a sentence in the region of 27 months’ imprisonment. 

16.  Now, one must then compare that to the defendant’s position.  He has already been detained for 4 months, which, were he to be sentenced to training centre, would not be taken into account in his sentencing.

17.  The operative period for detention in a training centre is from 6 months to 3 years, so in this case, the imposition of a training centre order could lead to lengthier detention than would occur in a prison sentence, although that is unlikely if the defendant responds well to the training centre programme.  Were the defendant detained for the more normal period together with his existing period of detention, it would become close, I believe, to the period that may be served were he detained and sentenced as an adult prisoner.

18.  What I believe can be said is that there is no, as it were, clear blue water exists between the position of the length of detention the defendant would face were he sentenced to imprisonment or sentenced to a training centre order, so this case is somewhat distinguishable on that basis from the case of Lau Shing Kit.

19.  Of course, there is the question of the risk of reoffending, and the general public, of course, has a direct interest in reducing the risk of any offender reoffending, and this defendant, on the basis of the reports I have, would appear to be a person who would respond well to the kind of training that is envisaged by a training centre order.  His are problems of self-control and what is described as law-abiding concepts, problems of discipline and education, which would be directly addressed by the programme he would enter into.

20.  A prison sentence would depend on his ability to respond to the more generalised concept of deterrence included in that.

21.  My overall analysis leads me to consider this case falls within what might be described as that exceptional area where a training centre order can be considered, and they arise out of the defendant’s youth, lack of criminal convictions, and the likely outcome of either sentencing possibility.

22.  On balance, and because this must be, to a certain extent, always an exceptional approach, I consider the defendant falls just within the parameters of a case where I can consider sending him to a training centre as opposed to immediate sentencing of imprisonment.

23.  For those reasons, this defendant will be sent to a training centre in respect of the offence to which he has pleaded guilty.