A HCCC 299/2012 A
IN THE HIGH COURT OF THE
B HONG KONG SPECIAL ADMINISTRATIVE REGION B
COURT OF FIRST INSTANCE
CRIMINAL CASE NO 299 OF 2012
C C
-----------------
D HKSAR D
v
E E
Ng Ping-hei
F
------------------ F
Before: Deputy High Court Judge Yau
G Date: 28 December 2012 at 9.39 am G
Present: Mr A Cheng, SPP(Ag), of the Department of Justice,
for HKSAR
H Mr A Allman-Brown, assigned by the Director of H
Legal Aid, for the accused
I Offence: Trafficking in a dangerous drug (販運危險藥物) I
J --------------------------------- J
Transcript of the Audio Recording
of the Sentence in the above Case
K K
---------------------------------
L COURT: The defendant, Mr Ng Ping-hei, pleaded guilty to one L
count of trafficking in a dangerous drug during the
committal proceedings in the Magistrates Court. The
M offence is contrary to section 4(1)(a) and (3) of the M
Dangerous Drugs Ordinance, Cap 134.
N N
The particulars of the offence are that the defendant, on
21 March 2012, at the junction of Kin Lung Street and Ho
O Tin Street, Tuen Mun, New Territories, in Hong Kong, O
unlawfully trafficked in a dangerous drug, namely, 20.28
grammes of a crystalline solid containing 19.83 grammes
P of methamphetamine hydrochloride. P
Q He is committed to this court for sentence. Q
Facts Admitted
R R
On 21 March 2012, the defendant, who was closely followed
by a male and a female, was stopped and searched by the
S police at the junction of Kin Lung Street and Ho Tin S
Street, Tuen Mun, New Territories. Inside his right
T trouser pocket the police found a piece of white tissue T
CRT22/28.12.2012/KMN 1 HCCC 299/2012/Sentence
U U
V V
A paper wrapping a plastic bag containing 19.04 grammes of A
a crystalline solid containing 18.62 grammes of
methamphetamine hydrochloride, commonly called “Ice”, and
B a plastic bag with four plastic bags inside containing a B
total of 1.24 grammes of a crystalline solid containing
1.21 grammes of “Ice”. On being arrested and cautioned,
C C
the defendant said that the “Ice” was mainly for his own
consumption.
D D
The male and female were friends of the defendant and
were also body searched. As no contraband was found on
E them they were released. E
F
In a video-recorded interview conducted subsequently, the F
defendant admitted, inter alia, that he had purchased the
“Ice” for about $3,500 from a friend whom he had no means
G to contact. He would consume the larger packet of “Ice” G
which could last him for about two months. He would give
the four smaller packets of “Ice” to his friends for
H free. He was jobless at the material time and had started H
consuming “Ice” about two months before.
I I
Criminal Record
J The defendant has a clear record but was dealt with by J
way of a superintendent’s discretion for an offence of
obtaining property by deception in April 2010.
K K
Background Report
L L
According to the background report, the defendant is aged
16. His parents divorced in 2007. When the defendant was
M young, his parents were busy with work and the defendant M
was cared for by his paternal and maternal grandmothers
and relatives.
N N
He quit schooling in 2011 after completing Form 3. He
O mixed with dubious peers and started to abuse “Ice” after O
leaving school. He committed the present offence
apparently out of his drug problem and his greed for
P money. P
Training Centre Suitability Report
Q Q
The background of the defendant is set out in the
R training centre suitability report which is similar to R
that in the background report of the defendant.
S The Correctional Service Department officer compiling the S
report is of the view that the defendant is mentally and
T T
CRT22/28.12.2012/KMN 2 HCCC 299/2012/Sentence
U U
V V
A physically fit for detention in the training centre and A
there is a place available for him.
B Mitigation B
Counsel for the defendant submits that in sentencing the
C C
defendant, who is only aged 16, the court should strike a
balance between public interests and the interests of the
D defendant himself. He points out that the defendant comes D
from a broken family and lacked family support and
guidance during his upbringing.
E E
The training centre suitability report considers the
F
defendant suitable for admission and the defendant is F
willing to go there to receive training.
G The counsel emphasises that a training centre regime G
which consists of detention and post-detention
supervision is more beneficial to the defendant and
H society than a prison sentence. Counsel cites to the H
court the authorities of AG v Suen Yuen Ming [1989] 2
I HKLR 403 and Wong Chun Cheong v HKSAR [2001] HKCFAR 12 I
regarding the sentencing of young offenders. The court
will come to these cases later.
J J
Counsel submits to the court a volunteer appreciation
certificate which was awarded to the defendant by the
K K
Hong Kong YWCA in 2010 for his volunteer service.
L The counsel asks the court to send the defendant to L
training centre.
M Sentence M
Trafficking in a dangerous drug is a very serious and
N N
socially abhorrent offence. Its evil lies in making
dangerous drugs more easily available to the general
O public by those unscrupulous traffickers who are ever O
ready to offend the law for quick money. Dangerous drugs
do not only ruin the person who is addicted to it but
P also affect the family of the person. They are also the P
cause of a lot of crimes affecting society as a whole.
This explains why the courts have always taken offences
Q Q
relating to dangerous drugs very seriously.
R The Court of Appeal has laid down clear sentencing R
guidelines for the offence of trafficking in “Ice”.
According to AG v Ching Kwok Hung [1991] 2 HKLR 125, if
S the amount of “Ice” is 10 grammes to 70 grammes the S
starting point is 7 to 10 years’ imprisonment. The amount
of “Ice” involved in the present case was 19.83 grammes.
T T
CRT22/28.12.2012/KMN 3 HCCC 299/2012/Sentence
U U
V V
A According to the sentencing guidelines, the starting A
point should be one of about 7 years and 6 months’
imprisonment.
B B
Although the defendant said in the video-recorded
interview that the larger packet of “Ice” was for his own
C C
consumption, and he would give the four smaller packets
of “Ice” to the others free of charge, the court finds
D this totally incredible. D
Being a youngster who had no job it was impossible that
E he could afford such a quantity of “Ice” and would be so E
generous as to give part of them to others for free. The
F
court has no doubt that he was delivering the “Ice” for F
other people for reward and that only a small part of the
dangerous drugs was for his own consumption.
G G
Sentencing is of course not an exercise of strict
mathematical calculation. It is even more difficult in
H the present case which involves an offender who is only H
16 years of age. For such a youngster, the court has to
I consider how he can be best rehabilitated. But, at the I
same time, the court cannot lose sight of the fact that
the defendant had committed a very serious offence which
J would carry a starting point of about 7-odd years’ J
imprisonment if the offence had been committed by an
adult.
K K
As held in the case of AG v Suen Yuen Ming, cited by the
L defence, when there is an apparent conflict between a L
young offender’s interests, his rehabilitation,
deterrence to him and to others, and the interests of the
M community, the court must determine how the interests of M
the offender and the community be best served.
N N
While the court in that case said that it was incumbent
upon the courts to be wary and to exercise great care
O before committing young offenders to prison, it also O
explained that only in very rare cases could a training
centre order be made in respect of offences involving
P substantial quantities of dangerous drugs. P
In the case of Wong Chun Cheong v HKSAR, the Court of
Q Q
Final Appeal laid down guidelines for the making of a
training centre order:
R R
(1) The court should first be satisfied that the
threshold requirements are met, ie, that the
S offence is punishable with imprisonment and S
that the offender is aged between 14 and 21.
T T
CRT22/28.12.2012/KMN 4 HCCC 299/2012/Sentence
U U
V V
A (2) The court should then consider whether in the A
case at hand the interests of the community
require that the rehabilitative approach should
B give way to a punitive or deterrent sentence. B
If so, the training centre option should not,
save in exceptional cases, be adopted.
C C
(3) If it is in the interests of the community to
D adopt a rehabilitative approach then the court D
must have regard to the offender’s character
and previous conduct as well as the
E circumstances of the offence in deciding E
whether it is expedient that he should undergo
F
a period of training in a training centre for F
his reformation and for the prevention of
crime.
G G
(4) Where the circumstances of the offence are such
that a training centre order would be too
H lenient, the court is entitled to reject that H
option notwithstanding that the offender would
I otherwise be regarded as a suitable candidate I
for training.
J (5) Similarly, where the offence committed is minor J
and would not otherwise call for a custodial
sentence, detention in the training centre
K K
would, save in exceptional cases, be
inappropriate, notwithstanding the offender’s
L suitability as a candidate for training. L
In the present case, the defendant is aged 16 years
M 7 months. He committed the offence when he was about M
15 years 11 months old which, in the view of the court,
although just falls outside the category of extreme
N N
youth, according to the case of AG v Lee Chi Ko [1987]
HKLR 1233, it is a factor the court should take into
O consideration in sentencing. O
Due to the young age of the defendant, the present case
P had first started in the Juvenile Court and was P
transferred to the adult court when the defendant reached
the age of 16 years. If the proceedings had been
Q Q
completed in the Juvenile Court the defendant would have
had the benefit of being dealt with there where different
R sentencing considerations would apply. R
According to section 11 of the Juvenile Offenders
S Ordinance, Cap 226, no young person who is aged 14 years S
and under the age of 16 is to be sentenced to
imprisonment if he can be suitably dealt with in any
T T
CRT22/28.12.2012/KMN 5 HCCC 299/2012/Sentence
U U
V V
A other way. Due to the time taken for the present case to A
be prepared, the defendant had lost such benefits.
B According to section 109A of the Criminal Procedure B
Ordinance, Cap 221, no court should sentence a person of
or over 16 and under 21 years of age to imprisonment
C C
unless the court is of the opinion that no other method
of dealing with such person is appropriate.
D D
If the principles in AG v Suen Yuen Ming and Wong Chung
Cheong v HKSAR and the relevant statutes are applied to
E the present case, in the view of the court it is obvious E
that sending the defendant to training centre is a viable
F
sentencing option that the court can adopt. Although the F
present case involves a fairly large amount of dangerous
drug the quantity was by no means substantial as
G envisaged in AG v Suen Yuen Ming. G
As stated above, it entails a starting point of 7 years
H 6 months’ imprisonment. If credit is given to the H
defendant for his guilty plea and taking into account
I that part of the dangerous drug was for the defendant’s I
own consumption, he would be sentenced to less than
5 years’ imprisonment.
J J
The defendant would receive a further one-third reduction
in sentence for good behaviour in the correctional
K K
institution making a final sentence of no more than
3 years’ imprisonment.
L L
If the defendant is sent to training centre he would have
to receive disciplinary training in a closed setting for
M a period of not more than 3 years according to the law. M
Experience tells us that the training usually lasts for
about 2 years. After that he will be subject to statutory
N N
supervision for 3 years which means that the defendant
will be trained and his conduct monitored for about
O 5 years. This would no doubt be most beneficial to the O
rehabilitation of the defendant.
P It can also be seen that sending the defendant to P
training centre may even be harsher than sending him to
imprisonment. More importantly, allowing the defendant to
Q Q
reform in a training centre regime is much better than
sending him to imprisonment and would benefit him, and
R society as a whole, better. R
The defendant has no previous conviction although he had
S once been dealt with by a superintendent’s discretion for S
the offence of obtaining property by deception.
T T
CRT22/28.12.2012/KMN 6 HCCC 299/2012/Sentence
U U
V V
A It is the view of the court that with proper training, A
guidance and supervision, there is still hope that the
defendant would turn a new leaf in life. As such, a
B training centre order would therefore not be too lenient B
a sentencing option that the court should reject.
C C
Having considered the whole circumstances of the case,
the principles in AG v Suen Yuen Ming and Wong Chun
D Cheong v HKSAR, and the relevant legislation regarding D
sentencing of juveniles and young persons, the court
sentences the defendant to training centre.
E E
F F
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
CRT22/28.12.2012/KMN 7 HCCC 299/2012/Sentence
U U
V V
A HCCC 299/2012 A
IN THE HIGH COURT OF THE
B HONG KONG SPECIAL ADMINISTRATIVE REGION B
COURT OF FIRST INSTANCE
CRIMINAL CASE NO 299 OF 2012
C C
-----------------
D HKSAR D
v
E E
Ng Ping-hei
F
------------------ F
Before: Deputy High Court Judge Yau
G Date: 28 December 2012 at 9.39 am G
Present: Mr A Cheng, SPP(Ag), of the Department of Justice,
for HKSAR
H Mr A Allman-Brown, assigned by the Director of H
Legal Aid, for the accused
I Offence: Trafficking in a dangerous drug (販運危險藥物) I
J --------------------------------- J
Transcript of the Audio Recording
of the Sentence in the above Case
K K
---------------------------------
L COURT: The defendant, Mr Ng Ping-hei, pleaded guilty to one L
count of trafficking in a dangerous drug during the
committal proceedings in the Magistrates Court. The
M offence is contrary to section 4(1)(a) and (3) of the M
Dangerous Drugs Ordinance, Cap 134.
N N
The particulars of the offence are that the defendant, on
21 March 2012, at the junction of Kin Lung Street and Ho
O Tin Street, Tuen Mun, New Territories, in Hong Kong, O
unlawfully trafficked in a dangerous drug, namely, 20.28
grammes of a crystalline solid containing 19.83 grammes
P of methamphetamine hydrochloride. P
Q He is committed to this court for sentence. Q
Facts Admitted
R R
On 21 March 2012, the defendant, who was closely followed
by a male and a female, was stopped and searched by the
S police at the junction of Kin Lung Street and Ho Tin S
Street, Tuen Mun, New Territories. Inside his right
T trouser pocket the police found a piece of white tissue T
CRT22/28.12.2012/KMN 1 HCCC 299/2012/Sentence
U U
V V
A paper wrapping a plastic bag containing 19.04 grammes of A
a crystalline solid containing 18.62 grammes of
methamphetamine hydrochloride, commonly called “Ice”, and
B a plastic bag with four plastic bags inside containing a B
total of 1.24 grammes of a crystalline solid containing
1.21 grammes of “Ice”. On being arrested and cautioned,
C C
the defendant said that the “Ice” was mainly for his own
consumption.
D D
The male and female were friends of the defendant and
were also body searched. As no contraband was found on
E them they were released. E
F
In a video-recorded interview conducted subsequently, the F
defendant admitted, inter alia, that he had purchased the
“Ice” for about $3,500 from a friend whom he had no means
G to contact. He would consume the larger packet of “Ice” G
which could last him for about two months. He would give
the four smaller packets of “Ice” to his friends for
H free. He was jobless at the material time and had started H
consuming “Ice” about two months before.
I I
Criminal Record
J The defendant has a clear record but was dealt with by J
way of a superintendent’s discretion for an offence of
obtaining property by deception in April 2010.
K K
Background Report
L L
According to the background report, the defendant is aged
16. His parents divorced in 2007. When the defendant was
M young, his parents were busy with work and the defendant M
was cared for by his paternal and maternal grandmothers
and relatives.
N N
He quit schooling in 2011 after completing Form 3. He
O mixed with dubious peers and started to abuse “Ice” after O
leaving school. He committed the present offence
apparently out of his drug problem and his greed for
P money. P
Training Centre Suitability Report
Q Q
The background of the defendant is set out in the
R training centre suitability report which is similar to R
that in the background report of the defendant.
S The Correctional Service Department officer compiling the S
report is of the view that the defendant is mentally and
T T
CRT22/28.12.2012/KMN 2 HCCC 299/2012/Sentence
U U
V V
A physically fit for detention in the training centre and A
there is a place available for him.
B Mitigation B
Counsel for the defendant submits that in sentencing the
C C
defendant, who is only aged 16, the court should strike a
balance between public interests and the interests of the
D defendant himself. He points out that the defendant comes D
from a broken family and lacked family support and
guidance during his upbringing.
E E
The training centre suitability report considers the
F
defendant suitable for admission and the defendant is F
willing to go there to receive training.
G The counsel emphasises that a training centre regime G
which consists of detention and post-detention
supervision is more beneficial to the defendant and
H society than a prison sentence. Counsel cites to the H
court the authorities of AG v Suen Yuen Ming [1989] 2
I HKLR 403 and Wong Chun Cheong v HKSAR [2001] HKCFAR 12 I
regarding the sentencing of young offenders. The court
will come to these cases later.
J J
Counsel submits to the court a volunteer appreciation
certificate which was awarded to the defendant by the
K K
Hong Kong YWCA in 2010 for his volunteer service.
L The counsel asks the court to send the defendant to L
training centre.
M Sentence M
Trafficking in a dangerous drug is a very serious and
N N
socially abhorrent offence. Its evil lies in making
dangerous drugs more easily available to the general
O public by those unscrupulous traffickers who are ever O
ready to offend the law for quick money. Dangerous drugs
do not only ruin the person who is addicted to it but
P also affect the family of the person. They are also the P
cause of a lot of crimes affecting society as a whole.
This explains why the courts have always taken offences
Q Q
relating to dangerous drugs very seriously.
R The Court of Appeal has laid down clear sentencing R
guidelines for the offence of trafficking in “Ice”.
According to AG v Ching Kwok Hung [1991] 2 HKLR 125, if
S the amount of “Ice” is 10 grammes to 70 grammes the S
starting point is 7 to 10 years’ imprisonment. The amount
of “Ice” involved in the present case was 19.83 grammes.
T T
CRT22/28.12.2012/KMN 3 HCCC 299/2012/Sentence
U U
V V
A According to the sentencing guidelines, the starting A
point should be one of about 7 years and 6 months’
imprisonment.
B B
Although the defendant said in the video-recorded
interview that the larger packet of “Ice” was for his own
C C
consumption, and he would give the four smaller packets
of “Ice” to the others free of charge, the court finds
D this totally incredible. D
Being a youngster who had no job it was impossible that
E he could afford such a quantity of “Ice” and would be so E
generous as to give part of them to others for free. The
F
court has no doubt that he was delivering the “Ice” for F
other people for reward and that only a small part of the
dangerous drugs was for his own consumption.
G G
Sentencing is of course not an exercise of strict
mathematical calculation. It is even more difficult in
H the present case which involves an offender who is only H
16 years of age. For such a youngster, the court has to
I consider how he can be best rehabilitated. But, at the I
same time, the court cannot lose sight of the fact that
the defendant had committed a very serious offence which
J would carry a starting point of about 7-odd years’ J
imprisonment if the offence had been committed by an
adult.
K K
As held in the case of AG v Suen Yuen Ming, cited by the
L defence, when there is an apparent conflict between a L
young offender’s interests, his rehabilitation,
deterrence to him and to others, and the interests of the
M community, the court must determine how the interests of M
the offender and the community be best served.
N N
While the court in that case said that it was incumbent
upon the courts to be wary and to exercise great care
O before committing young offenders to prison, it also O
explained that only in very rare cases could a training
centre order be made in respect of offences involving
P substantial quantities of dangerous drugs. P
In the case of Wong Chun Cheong v HKSAR, the Court of
Q Q
Final Appeal laid down guidelines for the making of a
training centre order:
R R
(1) The court should first be satisfied that the
threshold requirements are met, ie, that the
S offence is punishable with imprisonment and S
that the offender is aged between 14 and 21.
T T
CRT22/28.12.2012/KMN 4 HCCC 299/2012/Sentence
U U
V V
A (2) The court should then consider whether in the A
case at hand the interests of the community
require that the rehabilitative approach should
B give way to a punitive or deterrent sentence. B
If so, the training centre option should not,
save in exceptional cases, be adopted.
C C
(3) If it is in the interests of the community to
D adopt a rehabilitative approach then the court D
must have regard to the offender’s character
and previous conduct as well as the
E circumstances of the offence in deciding E
whether it is expedient that he should undergo
F
a period of training in a training centre for F
his reformation and for the prevention of
crime.
G G
(4) Where the circumstances of the offence are such
that a training centre order would be too
H lenient, the court is entitled to reject that H
option notwithstanding that the offender would
I otherwise be regarded as a suitable candidate I
for training.
J (5) Similarly, where the offence committed is minor J
and would not otherwise call for a custodial
sentence, detention in the training centre
K K
would, save in exceptional cases, be
inappropriate, notwithstanding the offender’s
L suitability as a candidate for training. L
In the present case, the defendant is aged 16 years
M 7 months. He committed the offence when he was about M
15 years 11 months old which, in the view of the court,
although just falls outside the category of extreme
N N
youth, according to the case of AG v Lee Chi Ko [1987]
HKLR 1233, it is a factor the court should take into
O consideration in sentencing. O
Due to the young age of the defendant, the present case
P had first started in the Juvenile Court and was P
transferred to the adult court when the defendant reached
the age of 16 years. If the proceedings had been
Q Q
completed in the Juvenile Court the defendant would have
had the benefit of being dealt with there where different
R sentencing considerations would apply. R
According to section 11 of the Juvenile Offenders
S Ordinance, Cap 226, no young person who is aged 14 years S
and under the age of 16 is to be sentenced to
imprisonment if he can be suitably dealt with in any
T T
CRT22/28.12.2012/KMN 5 HCCC 299/2012/Sentence
U U
V V
A other way. Due to the time taken for the present case to A
be prepared, the defendant had lost such benefits.
B According to section 109A of the Criminal Procedure B
Ordinance, Cap 221, no court should sentence a person of
or over 16 and under 21 years of age to imprisonment
C C
unless the court is of the opinion that no other method
of dealing with such person is appropriate.
D D
If the principles in AG v Suen Yuen Ming and Wong Chung
Cheong v HKSAR and the relevant statutes are applied to
E the present case, in the view of the court it is obvious E
that sending the defendant to training centre is a viable
F
sentencing option that the court can adopt. Although the F
present case involves a fairly large amount of dangerous
drug the quantity was by no means substantial as
G envisaged in AG v Suen Yuen Ming. G
As stated above, it entails a starting point of 7 years
H 6 months’ imprisonment. If credit is given to the H
defendant for his guilty plea and taking into account
I that part of the dangerous drug was for the defendant’s I
own consumption, he would be sentenced to less than
5 years’ imprisonment.
J J
The defendant would receive a further one-third reduction
in sentence for good behaviour in the correctional
K K
institution making a final sentence of no more than
3 years’ imprisonment.
L L
If the defendant is sent to training centre he would have
to receive disciplinary training in a closed setting for
M a period of not more than 3 years according to the law. M
Experience tells us that the training usually lasts for
about 2 years. After that he will be subject to statutory
N N
supervision for 3 years which means that the defendant
will be trained and his conduct monitored for about
O 5 years. This would no doubt be most beneficial to the O
rehabilitation of the defendant.
P It can also be seen that sending the defendant to P
training centre may even be harsher than sending him to
imprisonment. More importantly, allowing the defendant to
Q Q
reform in a training centre regime is much better than
sending him to imprisonment and would benefit him, and
R society as a whole, better. R
The defendant has no previous conviction although he had
S once been dealt with by a superintendent’s discretion for S
the offence of obtaining property by deception.
T T
CRT22/28.12.2012/KMN 6 HCCC 299/2012/Sentence
U U
V V
A It is the view of the court that with proper training, A
guidance and supervision, there is still hope that the
defendant would turn a new leaf in life. As such, a
B training centre order would therefore not be too lenient B
a sentencing option that the court should reject.
C C
Having considered the whole circumstances of the case,
the principles in AG v Suen Yuen Ming and Wong Chun
D Cheong v HKSAR, and the relevant legislation regarding D
sentencing of juveniles and young persons, the court
sentences the defendant to training centre.
E E
F F
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
CRT22/28.12.2012/KMN 7 HCCC 299/2012/Sentence
U U
V V