HKSAR v. YIU CHEUK HANG

DCCC 247/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 247 OF 2016

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REASONS FOR SENTENCE

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INTRODUCTION

1.  On 4 May 2016, the defendant was convicted, on his own plea, of one charge of trafficking in a dangerous drug, preferred against him by the prosecution pursuant to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. 

FACTS

2.  On the afternoon of 5 November 2015, a team of police officers observed that the defendant was behaving in a furtive manner near Ground Floor, King Shue House, Lei Muk Shue Estate, Kwai Chung, New Territories.  They intercepted him for enquiry and found in his right front trouser pocket one plastic bag containing 16 small bags with a white powdery substance in each of them.  A police officer proceeded to caution him.  The defendant said words to the effect that the white powdery substance was “perfume”, meaning ketamine; it was Chung Ki-fung, a person whom the defendant had met at a bar a couple of months ago, who had asked him to sell the “perfume” for a daily reward of $700 to $800; Chung had just put the plastic bag into the defendant’s trouser pocket; and it was the first time he worked for Chung.  The defendant was arrested and further cautioned.  There and in a subsequent video-recorded interview, he repeated he sold dangerous drugs for the first time, adding that Chung had provided him with a mobile phone.  The white powdery substance was later found to be 109 grammes of a powder containing 68 grammes of ketamine, the estimated value of which was $8,704.

MITIGATION

3.  The defendant was born in June 1996 and is 19 years old.  He has received education up to Form Two level and, according to the Antecedents Statement, has worked as a part-time warehouse assistant but has been unemployed for several months prior to the commission of the subject offence.  He has one criminal record for assault occasioning actual bodily harm, for which he was sentenced, in August 2011, to probation.    He lives with his parents.

4.  In his plea in mitigation, Mr Lawrence Ng for the defendant provides further background information as follows.  When the defendant was three years old, his parents divorced each other.  His custody was granted to his father.  In mid-2015, his mother took over responsibility over the defendant, but just several months afterwards, the defendant committed the present offence.  Mr Ng submits that since leaving school, the defendant has worked as a kitchen assistant making $11,000 a month, at which time he contributed towards the household expenses of his mother’s as well as his father’s.  Next, the defendant has worked as a warehouse attendant and at the same time in a Japanese restaurant. 

5.  As to the present offence, Mr Ng reveals to the court that Chung, who was also arrested, pleaded innocence and exonerated himself completely.  Contrasting Chung’s stance with that of the defendant, Mr Ng highlights the responsible manner in which the defendant has upon his arrest chosen to adopt.  Mr Ng stresses that the defendant has co-operated with the police, has never sought bail, and has pleaded guilty before this court; all this, says Mr Ng, shows the defendant’s genuine remorse.

6.  Mr Ng relies on several mitigation letters and asks for the court’s leniency in sentencing the defendant.  Contents of these letter are briefly as follows.  The defendant says he committed the subject offence due to greediness, and that he has vowed to become a useful member of the society.  The defendant’s mother says the defendant is not of a bad nature and that he committed the offence in question due to bad influence.  Dr Josephine Yau, a psychologist and a lecturer at the College of International Education, Hong Kong Baptist University, informs the court that the defendant has had a difficult childhood and has not received sufficient parental care and attention.  It is Dr Yau’s opinion that the defendant is both considerate and generous, who strives for acceptance and approval from his family and friends.  Dr Yau offers to provide the defendant with the necessary counselling to help him establish “a meaningful life with more positive values.”  A staff member of St. Stephen’s Society at which the defendant has resided on a voluntary basis for a year and a half attests that the defendant is a person of good nature, a person who is eager to learn.   

7.  According to the Training Centre Suitability Report, the defendant used to live with his natural father and his father’s co-habitee, who became his step-mother.  The step-mother has been ineffective in the defendant’s supervision; in consequence, the defendant became wayward during his upper primary school.  At secondary level, he befriended triad-related peers and his behaviour deteriorated.  The defendant has received residential training in Tuen Mun Children and Juvenile Home, St. Stephen’s Society, and Shing Mun Springs Multi-purpose Rehabilitation Home.  While he has been gainfully employed for some two years since leaving school, he has been unable to sever links with his triad friends.  He left his father’s house to live with his mother, who has been unable to supervise him; he committed the subject offence in the end.  

8.  Rehabilitation Officer Mr Ho Ka-keung is of the opinion that a period of disciplinary training coupled with statutory supervision might be beneficial to the defendant.  In view of the defendant’s attitude while on remand, Mr Ho considers the defendant suitable for detention in a training centre.

CONSIDERATION

9.  The offence of trafficking in a dangerous drug is a most serious offence, carrying as it does a statutory maximum sentence of life imprisonment[1].  The Court of Appeal in SJ v Hii Siew Cheng[2] held that the appropriate sentence, after trial, for trafficking in 50 to 300 grammes of ketamine should be six to nine years’ imprisonment.  In the present case, on the basis of the quantity of narcotic concerned, a prison term marginally above six years is in order.

10.  Section 4(1) of the Training Centres Ordinance, Cap 280, provides –

“ Where a person is convicted of an offence punishable with imprisonment, then if on the day of his conviction he is in the opinion of the court not less than 14 but under 21 years of age, and the court is satisfied that it is in the interest of the community and that having regard to his character and previous conduct, and to the circumstances of the offence, it is expedient for his reformation and for the prevention of crime that he should undergo a period of training in a training centre, the court may, in lieu of any other sentence, pass a sentence of detention in a training centre.” (emphasis supplied)

11.  The key factors that a sentencing court is required to consider under this provision are, first, the age of the offender; secondly, the interest of the community; thirdly, the defendant’s character and previous conduct; fourthly, the circumstances of the offence; and fifthly, expedience in the offender’s reformation and in the prevention of crime.  An observation can immediately be made: there is a conspicuous absence of any reference to the “nature” of the offence in this list.  It would be strange for any sentencing court not to have regard to the nature of the offence being dealt with.  It seems therefore that when considering the applicability of this provision, more emphasis should be placed on the circumstances in which the offence was committed, rather than the nature of the offence for which the defendant is being sentenced. 

12.  Turning now to the key factors to be considered, it is trite that in normal situations, a sentencing court should have regard to an offender’s circumstances as of the date of his sentence.  However, section 4(1) of the Training Centres Ordinance, Cap 280, provides that for detention in a training centre, it is the offender’s age upon his conviction – and not upon his sentence – that is relevant.  In theory, a defendant who is convicted before he turns 21 can be over that age upon sentence; such a defendant would still be eligible for detention at a training centre.  On this score, age as a criterion for detention in a training centre is, it appears to this court, more qualifying than disqualifying in operation.

13.  Consideration with respect to other key factors is made clear in SJ v Lau Shing-kit[3].  The 17-year-old defendant in that case pleaded guilty to one count of trafficking in 183.99 grammes of ketamine and was sentenced to detention in a training centre.  Upon application by the Secretary for Justice for a review of sentence, the Court of Appeal said:

“12. The judge noted that Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1 set guidelines for trafficking in ketamine of 6 to 9 years’ imprisonment for a quantity between 50 and 300 g. In relation to the appropriate starting point were a term of imprisonment to be imposed, he took the view that in the respondent’s case the appropriate starting point would be at the bottom of the tariff band, namely, 6 years’ imprisonment. That may at first appear surprising since the guideline would suggest a starting point in the range of 8 years’ imprisonment for the quantity of drugs in the case …

17. With great respect to the conscientiousness of the judge and acknowledging the unusual fact which he faced of a defendant who had just emerged from about five months’ incarceration in a detention centre, we were nonetheless of the view that the judge erred. True it is that the bands are not entirely mathematical in the sense that there is room for manoeuvre within them according to the circumstances of the case, but the room for manoeuvre in this case was not so great as permit an adjustment down from 8 to 6 years, especially having regard to the serious fact that the offence was committed whilst on bail. If a 6 year starting point would have been generous given the quantity of drugs, a 6 year point before plea after taking into account the aggravating factor of an offence whilst on bail, would have been clearly too generous. …

18. Whilst we acknowledge a certain discomfort at the notion of sending an offender to prison immediately upon the termination of a period in a detention centre, that discomfort must yield to the nature and gravity of the fresh offence. If the fresh offence is not of such a serious nature as to demand a substantial term of imprisonment, an imaginative sentencing approach of the type upon which the judge embarked is acceptable. If on the other hand the fresh offence is, by reason of its facts or by reason of sentencing policy attaching to its category, such as to require a lengthy term of imprisonment, then a term of imprisonment should be imposed.” (emphasis supplied)

14.  In that case, the Court of Appeal considered that a sentence after plea should be in the region of four and a half years’ imprisonment.  However, as the defendant has, by the time of the review hearing, completed over eight months’ detention at a training centre, the Court of Appeal dismissed the review application and said:

“22. Had we at this stage allowed the review and substituted a term of imprisonment, the history of the matter would have run as follows: a period of two months in prison custody pending plea in respect of this offence; before plea in respect of this offence sentence to a detention centre for the earlier theft offence; service by the respondent after the commission of, and arrest for, the present offence of a full period of detention in a detention centre; immediately after that, a short period of imprisonment pending sentence for the current offence; then, immediately after that, more than eight months in a training centre; and then, immediately after that, assuming we substituted a sentence of imprisonment, a substantial term of imprisonment. We were satisfied that that would not be an acceptable scenario now to create. It would have been a course with no regard to significant benefits thus far accrued, to the respondent and to society, (in addition to the punishment thus far imposed) and would be intrinsically unjust. It may have been different had the appropriate term of imprisonment been materially longer. …” (emphasis supplied)

15.  Next, the Court of Appeal has stressed in HKSAR v Wong Tsz Hin[4]that “[i]n view of the applicant’s young age and clear record and for the sake of the community, it is of importance that the applicant should be rehabilitated and a long term imprisonment may not be the best answer for his rehabilitation.” (emphasis supplied)  In sentencing a young person, in particular, a fresh offender or one with a minor record, the issue of his reformation must be given due weight, wherever possible.  A prison term should be reserved as the very last option.

16.  In this regard, section 109A(1) of the Criminal Procedure Ordinance, Cap 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 opinion that no other method of dealing with such person is appropriate; and for the purpose of determining whether any other method of dealing with any such person is appropriate the court shall obtain and consider information about the circumstances, and shall take into account any information before the court which is relevant to the character of such person and his physical and mental condition.”[5]

17.  In the instant case, if a starting point of slightly in excess of six years’ imprisonment is to be adopted, the one-third discount for the defendant’s guilty plea and the normal remission for good behaviour would bring the effective length of incarceration to some two years and nine months.  From that must be subtracted the period of the defendant’s pre-sentence detention, a period specifically referred to by the Court of Appeal in SJ v Lau Shing-kit[6]. The court notes that the defendant in this case has already spent over six and a half months in custody.  

18.  Detention at a training centre is never a soft option.  The maximum period of loss of liberty there is one of three years, and there is a statutory period of post-release supervision of three years.  In the instant case, having regard to the circumstances of the commission of the offence (see the defendant’s admission under caution) and to the defendant’s character and physical and mental condition, compared with a prison term of comparable, effective duration, a Training Centre Order is, in the view of this court, the more appropriate sentence to be imposed on him. Such an order is conducive to the defendant’s reform, thus reducing the chances of his re-offending, and it would enhance the prospect of his successful return to the community as a law-abiding member.  This will, in the court’s view, best serve the interest of the community.   

19.  Serious as the subject offence no doubt is, it is nevertheless the court’s view that in all the circumstances of the case, a Training Centre Order would sufficiently address the general sentencing criteria of punishment, retribution and deterrence.

CONCLUSION

20.  For the offence of which he stands convicted, the defendant is sentenced to detention at a training centre.