HKSAR v. HO HO YIN

HCCC 246/2019

[2020] HKCFI 474

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 246 OF 2019

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT:

The defendant, Ho Ho-yin, was just 16 years of age on 23 September 2018 when he committed this offence, an offence, following the guidelines in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, which attracts a starting point after trial of 14 years and 3 months for trafficking in 257.8 grammes of ‘Ice’. That is a substantial sentence. It cannot be said that he can pray in aid extreme youth in mitigation, but he was emerging from boyhood when this offending occurred and that is something the court should take into consideration. Just as it takes into consideration the circumstances of the offending, so the court must also consider the circumstances of the offender.

It has been said in Secretary for Justice v Chau Tsz Tim, CAAR 4/2014 and Secretary for Justice v Ho Wan Chiu, CAAR 5/2014 that drug trafficking is an evil business, as a result of which offenders can expect no mercy from the courts, irrespective of their background or the circumstances in which the offending was committed. That does not mean that those circumstances are not taken into consideration at all. It simply means that they carry less weight than they might otherwise carry had the offence before the court been less serious. Nor should it be read as offering no alternatives to an immediate custodial sentence come what may. The existence of judicial discretion allows for the court to act exceptionally where circumstances admit. It follows that it is the duty of the court to consider all relevant factors, including, inter alia, the balance between the public interest in the deterrence of serious criminal offences and the interest of the community in the rehabilitation of offenders, especially young offenders.

Whilst trafficking in dangerous drugs is an excepted offence under Schedule 3 to the Criminal Procedure Ordinance Cap 221, section 109A(1A) does no more than take away the mandatory nature of section 109A. The effect of section 109A does not preclude the court considering a range of sentencing options other than imprisonment, having taken into account all the circumstances of both the offending and the offender. Section 109A(1) reads:

“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.”

And under subsection (1A) it says:

“This section shall not apply to a person who has been convicted of any offence which is declared to be an excepted offence by Schedule 3.”

to which I have just referred. The difficulty that the court faces in this instance is that the amount of ‘Ice’ recovered attracts a far greater sentence than has been envisaged in cases where exceptionally a training centre order has been imposed. That was referred to in Attorney General v Suen Yuen Ming [1989] 1 HKC 430. A training centre order is an option foreseen by the parties in their respective submissions, for which I am grateful, no doubt because of the age of the defendant at the time of offending. The courts seek to exercise considerable care before sentencing the young to prison for it is generally considered more important to rehabilitate than to punish for by so doing we seek to avoid repeat offending and the community is thereby protected in the longer term.

Even after an early plea, the defendant is looking at a sentence of 9 years and 6 months’ imprisonment if he were to receive a one-third discount for his plea at an early stage. If he qualified for full remission, he would serve a sentence of imprisonment of approximately 6 years and 4 months. A training centre order, on the other hand, would, at most, deprive the defendant of his liberty for some three years with supervision thereafter. In order to properly and appropriately substitute the latter disposal for the former, there would have to be truly exceptional reasons to do so.

Ho Ho-yin was only 16 at the time of this offending, having left school after Form 1 in 2016. His academic record was poor and his attitude to school had deteriorated over several years. He had no more success in the working environment. In an age when dangerous drugs are more prevalent and seem to form part and parcel of everyday life of the young in the 21st century, the courts constantly face young offenders in possession of greater and greater quantities of drugs with little or no cognisance of the risks that they take in distributing them. Many run small operations out of smart hotels, turning over kilos of drugs and millions of dollars in short periods of time, blatantly and arrogantly breaking the law. Ho Ho-yin does not fall into this category of offender. He was not part of an ongoing operation as is often the case. He had never been in trouble before and was not an abuser of drugs. He was rebellious rather than arrogant. He was and is a troubled young man.

However, this was not an insignificant act. The street value of the drugs in which he was trafficking was HK$124,212. Perhaps his sheer naivety was the attraction to those far more evil than he, who without thought to the consequences to the defendant’s life enrolled him to carry the drug ‘Ice’ that day. If what he said upon arrest is correct, when he looked into the bag he had been given he realised the seriousness of what he was doing and immediately tried to extricate himself but could not do so. But he did try and do everything in his power to assist. He was completely full and frank with the police, and this is telling.

I was therefore prepared to consider a training centre order and adjourned for a report, but I made it plain at the time that this would be an exceptional disposal and was by no means guaranteed. I received that report on 31 December 2019. Unfortunately, whilst he is considered suitable for such a disposal, the report does not read well. It suggests that the defendant has consistently shown a disregard for those in authority, whether that be to his teachers, parents or members of the disciplined services. His academic work and remand history suggest an inability to knuckle down to the daily grind of life, to follow rules or, indeed, to seek to improve his own lot in life in a conventional way. Significantly, during his 18 months on remand in Pik Uk he has grown increasingly troublesome and will, in any event, lose remission. The court cannot reward bad behaviour by a period of detention in a training centre. That would send an entirely wrong message to this defendant and also to others with whom he is currently on remand. He must, therefore, serve a term of imprisonment.

I take everything into account which Ms Wong has ably said on the defendant’s behalf and note the love and support of his family. The defendant was remorseful about this venture even before he was arrested. He was full and frank upon arrest. He has attempted to assist even though his youth and inexperience would inevitably mean that he knew very little about the trafficking in dangerous drugs in which he was engaged. Even if this does not lead to an arrest or prosecution, no doubt at least some part of the information he has provided will be added to the growing pool of intelligence used by the police and some credit should be given for that. He should know that he did the right thing by assisting.

In accordance with HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, the starting point for sentence for the trafficking of 257.8 grammes of ‘Ice’ is 14 years and 3 months. Given his age, immediate remorse and assistance, the defendant must serve a term of imprisonment which will be a sentence of 8 years and 7 months.