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DCCC 1116/2016
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 1116 OF 2016
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| Before: |
His Honour Judge Sham |
| Present: |
Ms Emily Cheung, Counsel on fiat, for HKSAR
Mr Ting Che Ming of Messrs Tse Yuen Ting Wong for the Defendant assigned by Legal Aid Department
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| Offence: |
Trafficking in dangerous drug（販運危險藥物） |
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REASONS FOR SENTENCE
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Introduction
1. The defendant, a 19-year-old young man, admitted to trafficking in 47.8 grammes of a solid containing 36.1 grammes of cocaine.
Facts
2. In the small hours of 9 October 2016, the defendant was travelling on a taxi from his home in North Estate, Chuek Yuen, Wong Tai Sin to a destination in Mong Kok. On the way, his taxi was stopped by the police at a roadblock in Sai Yee Street, Mong Kok, where he was asked to get out of the taxi for questioning.
3. No sooner had he stepped out than he took to his heels, the police managed to catch him after a brief chase. The officers found the drugs, which were kept in two re-sealable plastic bags inside a black plastic bag, in the defendant’s front right trousers pocket. Also found on him were cash in the sum of HK$25,666 and Renminbi $105 and two mobile phones. The defendant told the police that the drugs were for his own consumption.
4. According to the taxi driver, the defendant detoured to Kowloon Bay where he went away for a while and then continued his journey to Mong Kok.
5. The street value of the drugs seized is estimated to be slightly over $50,000.
Mitigation
6. The defendant has one previous of simple possession for which he was sentenced to Rehabilitation Centre on 15 November 2016; in other words, he is serving the sentence at the moment. The conviction, however, is post-dated the present offence.
7. The court was told that the defendant did not do well at school; after leaving school at Form 3, he had done a number of different jobs but did not stay long in any one of them. At the time of the offence, he was a part-time renovation worker.
8. A few months before the offence, counsel said, the defendant got involved with some undesirable friends, frequented the bars most of the time, and worse still picked up the vice habit of taking cocaine. On top of that, he also engaged in gambling resulting in debt over $100,000.
9. Faced with the financial strait, counsel said, the defendant was succumbed to a friend’s suggestion about making quick money by trafficking in dangerous drugs.
10. In his letter to the court, the defendant expressed his remorse for what he had done and promised that he would stay away from drugs and become a reformed character. His parents and relatives also wrote to the court asking for leniency on his behalf.
11. Insofar as part consumption was concerned, counsel submitted that the defendant could not pinpoint how much exactly of the drugs for his own consumption, but could only say a small portion.
12. In the end, counsel asked the court to consider a training centre report in order to show mercy for a young offender like the defendant.
Reasons
13. Counsel for the defendant asked this court to consider training centre as a sentencing option. According to section 109A of the criminal procedure ordinance on the restriction on imprisonment of persons between 16 and 21 years of age:-
Subsection 1 states:
“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.”
Subsection 1A states:
“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.”
Trafficking is one of the excepted offences.
14. In two separate review cases (CAAR 4, 5/2014) heard together where the sentencing judge imposed Training Centre Order on two defendants who had pleaded guilty to trafficking; the amount of drugs they trafficked would attract a starting point of not less than 6 years imprisonment. In allowing the applications by the Secretary for Justice, the appellate court said:-
“Drug trafficking is an evil business and the courts have repeatedly emphasized that whoever carries on such an evil business, irrespective of his/her background or the circumstances in which the offences are committed, can expect no mercy, otherwise the “aged”, the “young” and the “crippled” will be encouraged to take part.” (Paragraph 29 of the judgement)
“Young age is very often a mitigating factor, particularly in trivial offences, and it is generally considered more important to rehabilitate a young offender than to severely punish him as a deterrent. There is also no doubt that the court must exercise great care before committing young persons to prison.” (Paragraph 30 of the judgement)
“However we are dealing with serious drug trafficking offences and in respect of such offences the courts have said that the public interest requires that deterrence of other potential offenders must take precedence over the rehabilitation of a particular offender before it. It is, therefore, not in the interests of the community to sentence even young offenders of serious drug trafficking offences to the training centre.” (Paragraph 31 of the judgement)
In the end, both defendants were given a 4-year term of imprisonment instead.
15. Defence counsel also submitted that a small portion of the drugs was for the defendant’s own consumption and for this reason asked the court to reduce the sentence further.
16. In Liu Ming Sze (CACC 103/2016), the appellate court said that a discount of sentence to reflect the element of self-consumption was to be afforded only where the court accept that a significant proportion of the drugs was for self-consumption. Counsel stated clearly only a small portion as opposed to a significant proportion was for self-consumption, and in view of that, the court is not prepared to give further reduction in sentence.
17. There are sentencing guidelines for this type of offence, for trafficking in the amount from 10 g to 50 g; a term of 5 years to 8 years is to be considered.
18. Having heard the mitigation put forward, I see no reasons to depart from the guidelines as set down by the higher court. For the amount of drugs the defendant admitted trafficking, I take 83 months as starting point and reduce it to 55 months to reflect his plea. There being nothing to justify a further reduction in sentence, the defendant is therefore sentenced to 55 months imprisonment.
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