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DCCC 73/2019
[2019] HKDC 951
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 73 OF 2019
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| Present: |
Mr Ng Wing Kit, PP, of the Department of Justice, for HKSAR
Mr Steven Lau instructed by JWC Solicitors, assigned by the Director of Legal Aid, for the defendant |
| Offence: |
Trafficking in a dangerous drug (販運危險藥物) |
REASONS FOR SENTENCE
1. The defendant pleads guilty to one charge of trafficking in 29.877 kilogrammes of cannabis in herbal form, contrary to section 4 of the Dangerous Drugs Ordinance[1].
2. Full particulars of the offence are set out in the facts admitted by the defendant today. In summary on 10 November last year the defendant collected two suitcases from conveyor belt No. 9 at the baggage reclaim area of the Hong Kong International Airport. The defendant was intercepted by customs officers for customs clearance.
3. With the defendant’s consent the two suitcases were searched. A total of thirty black packets containing the cannabis were found in the suitcases.
4. The prevailing retail price of the cannabis was in the region of HK$10,128,303.
5. Under caution and in a subsequent video recorded interview the defendant, inter alia, admitted that he was asked by a person he met on Facebook to bring the two suitcases from Vancouver to Hong Kong for a reward of $80,000; his flight, accommodation and expenses in Canada were paid for; he knew the two suitcases contained cannabis and that he had not yet received any remuneration.
Mitigation
6. In passing sentence, I have carefully considered the oral and written submissions of Mr Lau, including that the defendant, who lives with his father, is only 18 and has a clear record[2].
7. I have read the mitigation letters written by the defendant, his parents and family members, many of whom are in court today to show support. Letters have also been written by the Chairman of the Board of Directors of the Shun Tin Baptist Church and the Assistant Principal and Guidance Officer of Wai Kiu College who both speak of the defendant as a caring person willing to help others and not bad in nature.
Young offender
8. Section 109A of the Criminal Procedure Ordinance 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[3]. Whilst this provision does not apply to trafficking in a dangerous drug, which is an excepted offence, a court must exercise great care before committing a young offender to prison.
9. In Secretary for Justice v Chau Tsz Tim the Court of Appeal restated that only in very rare cases where there are exceptional circumstances will a Training Centre Order be appropriate for trafficking in substantial quantities of drugs[4].
10. This is a very serious case involving importation of drugs valued at over HK$10 million. After very careful consideration I am satisfied this is not one of those very rare cases where a Training Centre Order may be appropriate. Notwithstanding the defendant’s young age and clear record, I am satisfied I can proceed to sentence today without calling for any reports.
Guidelines
11. In Attorney General v Tuen Shui Ming & another the Court of Appeal laid down guidelines for sentencing[5]. Where the quantity of cannabis resin is over 9000 grammes sentence after trial is upwards of 4 years’ imprisonment[6].
12. The court further said that the tariff is to be adjusted for herbal cannabis which has a lower concentration of tetrahydrocannabinol than cannabis resin and that any adjustment should be within the range dictated for cannabis resin.
13. Mr Lau refers the court to AG v So Chin Chiu[7] and R v Chong Chak On[8]. I have considered these cases however they are not cases concerning the importation of drugs.
14. In HKSAR v Touray Edrisa & others (referred to Mr Lau by the court) 30.20 kg of cannabis in herbal form was imported into Hong Kong from South Africa. The Court of Appeal upheld a sentence of 6 years’ imprisonment after trial[9].
15. I am satisfied a starting point of 6 years’ imprisonment is appropriate. Giving the defendant full credit for his plea of guilty reduces the sentence to 4 years’ imprisonment.
16. The courts have repeatedly said that young age and clear record in cases of drug trafficking will count for little[10]. In the letter from the Assistant Principal and Guidance Officer of Wai Kiu College reference is made to the defendant participating in voluntary work including with the St John Ambulance.
17. Mr Lau informs the court that in Form 1 and Form 2 the defendant helped with the emergency services of St John Ambulance and that during the six years of secondary school he would twice a year visit the elderly and sell flags for the Community Chest.
18. In recognition of this good work, I reduce the sentence by 2 months to 3 years and 10 months’ imprisonment.
19. The defendant is convicted and sentenced to 3 years and 10 months’ imprisonment.
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(D. J. DUFTON) |
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District Judge |
[1] Cap 134.
[2] See §§5-7 of the written mitigation submissions for the defendant.
[3] Cap 221.
[4] [2015] 1 HKLRD 853. Also see Secretary for Justice v Ko Fei Tat [2002] 4 HKC 59 and Secretary for Justice v Lau Shing Kit [2012] 5 HKLRD 297.
[5] [1995] 2 HKCLR 129.
[6] Mr Lau referred the court to the old guidelines in R v Chan Chi Man AR19/1986.
[7] AR 10/1993.
[8] CACC 633/1994.
[9] CACC 124/2010.
[10] See for example R v Lau Tak Ming [190] 2 HKLR370 at page 386; HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437 at §32 and HKSAR v Lkhaijav Bayanmunkh CACC 320/2011 at §11.
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