HKSAR v. YEUNG SHING CHI

DCCC1154/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1154 OF 2011

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

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

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

Reasons for Sentence

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

The Charge and the Facts

1.  The Defendant pleaded guilty to one charge of trafficking in a dangerous drug, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

2.  The facts admitted by the Defendant and which formed the basis of the charge are relatively simple. In the small hours of 25 July 2011, while the police were patrolling in Yaumatei, they saw the Defendant acting furtively at the rear staircase of a building and they stopped the Defendant for enquiries. Upon search, a cigarette box containing a cigarette with cocaine and a plastic bag containing 15 packets of ketamine were found on the Defendant.

3.  After subsequent examination, the drugs were confirmed to be 0.09 grammes of a mixture containing cocaine and a total of 42.48 grammes of ketamine. The estimated street value of the drugs was HK$3,500.

Mitigation

4.  The Defendant was born in the Mainland on 12 April 1995. He is now 16 years of age and has a clear record. He was educated up to Form 2 level. At the time of the offence, he had quitted school and was not under any employment. 

5.  The Defendant is the adopted son of his parents. He came to Hong Kong at the age of 5. However, his adoptive parents operated their scaffoldings business at home and there were arguments at times. It was said that, this, together with the Defendant’s awareness that he is only an adopted son, might have caused him to act rebelliously.

6.  The Defendant came to meet a man nicknamed “Kam Do” through his cyber café friends. On the day of the offence, “Kam Do” gave him the drugs and asked him to sell those. The Defendant would then be given a reward of HK$800.

7.  In mitigation, it was said that the Defendant, because of his young age and simplicity, was made use of by the others to commit the present offence. Ms. Chan emphasized that this was not a case where the Defendant embarked upon a calculated course of criminal conduct. It was one in which a young person was being manipulated by his undesirable adult peers. Ms. Chan described the Defendant as a person of mild personality and is good-natured. He was fully co-operative after his arrest and he made frank admissions. His parents are supportive and as they have now ceased their business, they would be able to keep the Defendant under close supervision.   

The Reports

8.  In view of the Defendant’s age, his background, and his clear record, I have adjourned sentence to today in order to obtain a background report and a Training Centre report.

9.  Many of the matters covered in the reports have already been dealt with by Ms. Chan in mitigation. It is clear that the Defendant was not interested in his studies and he turned wayward after mingling with undesirable peers when he attended Form One. He then started frequenting parks, cyber cafes and football pitches, eventually quitting school in December 2010 without completing Form Two. Other than working for a short period in a fastfood restaurant and at the McDonald, the Defendant simply remained idle.

10.  In the Training Centre report, it was said that in June 2011, being persuaded by his peers, the Defendant started taking ketamine and cocaine. He also admitted engaging himself in selling drugs in order to support his spending. However, in the Probation Officer’s report, it was said that the Defendant denied any drug taking in the past. Whatever the true position was, the Defendant admitted to both the Probation Officer and the Training Centre Officer that it was out of greed that he committed the offence for he would be given a reward of HK$800 for each drug trafficking act.

11.  In both reports, the Defendant was described as susceptible to peer influence. His law-abiding concept is poor and he is unable to tell right from wrong when faced with temptations.

12.  As regards parental attention, both reports revealed that the Defendant’s parents care and concern about the Defendant very much. They love the Defendant although parental supervision and discipline appeared to be ineffective and inadequate. This morning, Ms. Chan told the court that the parents visited the Defendant everyday during his remand. The Defendant has also reflected deeply on his wrongdoings and is now able to appreciate the love of his parents. He is therefore determined to turn over a new leaf and not to disappoint his parents again.

13.  Both officers concluded that in order to enable the Defendant to develop insight into his problems and for his rehabilitation, a period of disciplinary training would be beneficial to him.   

Sentencing Considerations

14.  The Court has said time and again that there is a need for deterrence when dealing with offences like trafficking in a dangerous drug and that age carries little weight in mitigation.

15.  It is also well-established that save in “very rare cases”, a Training Centre Order for trafficking in substantial quantities of dangerous drugs should not be imposed. (see e.g. AG v Suen Yuen Ming [1989] 2 HKLR 403 and SJ v Ko Fei-tat [2002] 4 HKC 59)

Sentencing the Defendant

16.  In the present case, given that the amount of cocaine involved is very minor, it is appropriate to ignore that when considering the sentence.

17.  In SJ v Hii Siew Cheng ＆ Another [2009] 1 HKLRD 1, the Court of Appeal laid down the sentencing guidelines for trafficking in ketamine. In the present case, for the 42.48 grammes of ketamine involved, a starting point of 66 months would be appropriate if a term of imprisonment were to be imposed.

18.  No doubt, the drug involved here is of a significant amount, but having carefully considered all the relevant matters, I do not find that this is a case in which the seriousness of the offence renders it wholly disproportionate or inappropriate to deal with the Defendant by way of a Training Centre Order.

19.  From all the information available, the Defendant, who was aged 16 years and 3 months at the time of the offence, is a simple-minded person who is susceptible to peer influence. He is immature and rebellious. In my view, there is a better chance that the Defendant would turn over a new leaf and become a useful member of the community if he could be provided with suitable training and supervision.

20.  In arriving at this conclusion, I have not forgotten that drug trafficking is a serious offence and that a clear message has to be sent to the community to deter those who seek to hire and exploit young persons to traffick for them, and to deter the young from engaging in drug trafficking activities.

21.  However, having considered the facts of this case, the circumstances of the offence, matters urged upon me in mitigation, the Defendant’s clear record, his age, his background, and his supportive parents, I am of the view that it is in the interest of the community to grasp what would appear to be a last chance to reform this Defendant and to prevent him from going down a path which has no return.

22.  To send the Defendant to prison would mean that he would not be given the disciplinary training and the term of statutory supervision, the purpose of which supervision is to have the Defendant’s conduct regulated for up to three years after his release, thus seeking to minimize the danger of the Defendant turning astray again. The Training Centre Order, when compared with sending the Defendant to the prison, is a better option in terms of the Defendant’s reformation and the prevention of crime, and is thus more in the interest of the community. 

23.  Therefore, after careful consideration, I take the view that a Training Centre Order is the most appropriate method to deal with the Defendant. I therefore make a Training Centre Order in respect of the charge to which the Defendant has pleaded guilty.