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DCCC 198/2017
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 198 OF 2017
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| Present: |
Mr Geoffrey Chang, counsel on fiat, for HKSAR |
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Mr Leung Fu Hang of Wong & Co, 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. Li Chun Yin you have pleaded guilty to one charge of trafficking in 23.9 grammes of a solid containing 21.5 grammes of cocaine, contrary to section 4 of the Dangerous Drugs Ordinance[1].
2. In summary at about 2110 hours on 13 December last year you were intercepted by the police outside Iris Garden in Shatin. The police found from the right pocket of your jacket one plastic bag containing the cocaine.
3. Under caution and in a later video recorded interview you admitted that you were delivering the cocaine to earn money because your mother was sick.
4. You pleaded guilty on 4 September 2017 after which a request was made to adjourn sentence for three months. I called for a background report as you were on probation at the time the offence was committed.
Mitigation
5. In passing sentence, I have carefully considered everything said on your behalf by Mr Leung together with your mitigation letter and the letters written by your mother, father and grandmother. I take into account that since your mother was diagnosed with cancer you moved to live with your mother so that you could take care of your mother and accompany her to all medical appointments.
6. I have carefully considered the content of the background report which details the support of your family; your employment history and association with triad societies. I also note your recent support for the organ donation registration scheme.
7. I take into account your young age. The offence was committed in December last year when you were 22. You are now 23 and next month will be 24. I take into account you have no convictions for drug offences. You do however have one conviction for claiming to be a member of a triad society for which on 3 October 2016 you were placed on probation for 12 months in the Kowloon City Magistracy[2].
8. You told the probation officer that you committed the offence not to earn money because your mother was sick but in exchange for being allowed to leave the triad society[3]. This Mr Leung says was the sole reason you committed the offence. As expressed in court I have my reservations this is the real reason you committed the offence. I also do not accept you did not realise how serious trafficking in drugs was[4].
9. As noted earlier on arrest you told the police you were delivering the cocaine to earn money because your mother was sick. In your mitigation letter you also says this is the reason why you committed the offence.
10. In addition, I have read the pre-sentence reports called for by the magistrate when you were placed on probation in October 2016. You told the probation officer that you had cut off your linkage with triad peers and become more disciplined after being arrested in July 2016, also for trafficking drugs[5]. Mr Leung informs the court although you were placed on bail you were never charged with any offence.
11. Mr Leung, having taken your further instructions, informs the court that the real reason for committing the offence was for a reward of $1,500 and that you told the probation officer you committed the offence in exchange for being allowed to leave the triad society in the hope that the probation officer would write a positive report.
12. Mr Leung says that while on remand you have decided, with the full support of your family, to cut off your linkage with the triad society. After serving your sentence arrangements have been put in place for you to go to Guangzhou and work as a media apprentice.
Starting point
13. The courts have equated for sentencing purposes cocaine with heroin[6]. In R v Lau Tak Ming the Court of Appeal laid down guidelines for trafficking in heroin[7]. Where the quantity of narcotic is between 10 and 50 grammes sentence falls within the range of 5-8 years’ imprisonment.
14. Mr Leung submits a starting point of less than 5 years and 6 months is appropriate for delivering 21.5 grammes of cocaine. In support Mr Leung relies on the sentence imposed in HKSAR v She Suet Yee[8] where the trial judge took a starting point of 5 years and 6 months for delivering 22.2 grammes of cocaine.
15. On appeal the respondent submitted that on an arithmetic basis the starting point should have been 5 years and 11 months. In refusing leave to appeal the court agreed with the respondent and said that the sentence could well have been slightly higher had the judge adopted a strictly arithmetical approach. The court noted that the judge may have imposed a slightly lower sentence because in the exercise of his discretion he factored into the sentencing equation the young age (22) and clear record of the applicant.
16. On a strictly arithmetical approach the starting point for 21.5 grammes is also 5 years and 11 months. Although you do not have a clear record, taking into account this is your first conviction for trafficking in drugs and your relatively young age, I am satisfied the proper starting point after trial is 5 years and 9 months’ imprisonment.
17. Giving you full credit for your plea of guilty you are convicted and sentenced to 3 years and 10 months’ imprisonment.
Breach of probation
18. Your conviction places you in breach of the probation order made on 3 October 2016 in the Kowloon City Magistracy for the offence of claiming to be a member of a triad society[9]. Notwithstanding the probation order has now expired you stand to be re-sentenced for that offence[10].
19. I have had the opportunity of reading the case papers including the facts admitted by you and the pre-sentence reports called for by the magistrate. You admitted that in March 2014 you claimed to an undercover police officer that you were a member of the Hang Hau faction of the Wo Shing Wo triad society.
20. In the background report prepared for the hearing today the probation officer notes that according to your supervising officer you had become more mature and had a better self-reflection on your past misdeeds and that the case was closed satisfactorily upon the expiry of the probation order[11].
21. These comments must however be viewed in light of the fact that just over two months after being placed on probation you committed the present offence and have been remanded in custody since your arrest. In these circumstances I cannot agree you completed your probation satisfactorily.
22. I am satisfied that I should re-sentence you. I am satisfied the proper starting point after trial for claiming to be a member of a triad society is 6 months’ imprisonment. Giving you full credit for pleading guilty before the magistrate the sentence is reduced to 4 months’ imprisonment.
23. Taking into account totality of sentence I order 2 months consecutive and 2 months concurrent to the sentence for trafficking in a dangerous drug. The total sentence to be served by you is 4 years’ imprisonment, which I am satisfied properly reflects your criminality in both cases.
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(D. J. DUFTON) |
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District Judge |
[1] Cap 134.
[2] KCCC1249/2016.
[3] See §12 of the background report.
[4] See §13 of the background report.
[5] See §§4-6 of the background report/community service suitability report and §2 of the background report/further community service suitability report.
[6] See Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69.
[7] [1990] 2 HKLR 370.
[8] CACC 383/2016.
[9] KCCC1249/2016.
[10] See section 7(6) of the Probation Ordinance, Cap 298. I note in Sentencing in Hong Kong Seventh Edition at page 440 citing R v Cousin, the learned authors state that the court has no power to resentence where the probation order has expired. Having read R v Cousin and the relevant UK legislation then in force, the Criminal Justice Act 1991, schedule 2, I am satisfied the legislation in Hong Kong is materially different. Section7(6) of the Probation Ordinance specifically gives the court power to resentence where the probationer has committed a further offence. In contrast by virtue of schedule 2, paragraph 5 of the Criminal Justice Act 1991 the commission of a further offence shall not give rise to a breach of the probation order. Further the requirement in Part III of the schedule ‘Revocation of Order’, that the relevant order is in force is absent from the Hong Kong legislation.
[11] See §§11 & 20 of the background report.
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