A A
B B
DCCC 198/2017
C IN THE DISTRICT COURT OF THE C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D CRIMINAL CASE NO. 198 OF 2017 D
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E HKSAR E
v
F F
LI CHUN YIN
G ____________ G
H
Before: HH Judge Dufton H
Date: 4 December 2017
I Present: Mr Geoffrey Chang, counsel on fiat, for HKSAR I
Mr Leung Fu Hang of Wong & Co,
assigned by the Director of Legal Aid, for the defendant
J J
Offence: Trafficking in a dangerous drug (販運危險藥物)
K K
REASONS FOR SENTENCE
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1. Li Chun Yin you have pleaded guilty to one charge of
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trafficking in 23.9 grammes of a solid containing 21.5 grammes of cocaine,
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contrary to section 4 of the Dangerous Drugs Ordinance1. N
O 2. In summary at about 2110 hours on 13 December last year you O
were intercepted by the police outside Iris Garden in Shatin. The police
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found from the right pocket of your jacket one plastic bag containing the
Q cocaine. Q
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S S
T T
1
Cap 134.
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2
A A
B B
3. Under caution and in a later video recorded interview you
C admitted that you were delivering the cocaine to earn money because your C
mother was sick.
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4. You pleaded guilty on 4 September 2017 after which a request
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was made to adjourn sentence for three months. I called for a background
F report as you were on probation at the time the offence was committed. F
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Mitigation
H H
5. In passing sentence, I have carefully considered everything
I said on your behalf by Mr Leung together with your mitigation letter and I
the letters written by your mother, father and grandmother. I take into
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account that since your mother was diagnosed with cancer you moved to
K live with your mother so that you could take care of your mother and K
accompany her to all medical appointments.
L L
M 6. I have carefully considered the content of the background M
report which details the support of your family; your employment history
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and association with triad societies. I also note your recent support for the
O organ donation registration scheme. O
P P
7. I take into account your young age. The offence was
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committed in December last year when you were 22. You are now 23 and Q
next month will be 24. I take into account you have no convictions for
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drug offences. You do however have one conviction for claiming to be a
S member of a triad society for which on 3 October 2016 you were placed on S
2
probation for 12 months in the Kowloon City Magistracy .
T T
2
KCCC1249/2016.
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3
A A
B B
8. You told the probation officer that you committed the offence
C not to earn money because your mother was sick but in exchange for being C
3
allowed to leave the triad society . This Mr Leung says was the sole reason
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you committed the offence. As expressed in court I have my reservations
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this is the real reason you committed the offence. I also do not accept you E
4
did not realise how serious trafficking in drugs was .
F F
9. As noted earlier on arrest you told the police you were
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delivering the cocaine to earn money because your mother was sick. In
H your mitigation letter you also says this is the reason why you committed H
the offence.
I I
J 10. In addition, I have read the pre-sentence reports called for by J
the magistrate when you were placed on probation in October 2016. You
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told the probation officer that you had cut off your linkage with triad peers
L and become more disciplined after being arrested in July 2016, also for L
trafficking drugs 5. Mr Leung informs the court although you were placed
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on bail you were never charged with any offence.
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11. Mr Leung, having taken your further instructions, informs the
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court that the real reason for committing the offence was for a reward of
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$1,500 and that you told the probation officer you committed the offence P
in exchange for being allowed to leave the triad society in the hope that the
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probation officer would write a positive report.
R R
S S
3
See §12 of the background report.
4
See §13 of the background report.
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5
See §§4-6 of the background report/community service suitability report and §2 of the
background report/further community service suitability report.
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A A
B B
12. Mr Leung says that while on remand you have decided, with
C the full support of your family, to cut off your linkage with the triad society. C
After serving your sentence arrangements have been put in place for you
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to go to Guangzhou and work as a media apprentice.
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Starting point
F F
13. The courts have equated for sentencing purposes cocaine with
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heroin6. In R v Lau Tak Ming the Court of Appeal laid down guidelines for
H trafficking in heroin7. Where the quantity of narcotic is between 10 and H
50 grammes sentence falls within the range of 5-8 years’ imprisonment.
I I
14. Mr Leung submits a starting point of less than 5 years and 6
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months is appropriate for delivering 21.5 grammes of cocaine. In support
K Mr Leung relies on the sentence imposed in HKSAR v She Suet Yee8 where K
the trial judge took a starting point of 5 years and 6 months for delivering
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22.2 grammes of cocaine.
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15. On appeal the respondent submitted that on an arithmetic basis
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the starting point should have been 5 years and 11 months. In refusing
O leave to appeal the court agreed with the respondent and said that the O
sentence could well have been slightly higher had the judge adopted a
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strictly arithmetical approach. The court noted that the judge may have
Q imposed a slightly lower sentence because in the exercise of his discretion Q
he factored into the sentencing equation the young age (22) and clear
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record of the applicant.
S S
6
See Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69.
T 7 T
[1990] 2 HKLR 370.
8
CACC 383/2016.
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A A
B B
16. On a strictly arithmetical approach the starting point for 21.5
C grammes is also 5 years and 11 months. Although you do not have a clear C
record, taking into account this is your first conviction for trafficking in
D D
drugs and your relatively young age, I am satisfied the proper starting point
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after trial is 5 years and 9 months’ imprisonment. E
F 17. Giving you full credit for your plea of guilty you are convicted F
and sentenced to 3 years and 10 months’ imprisonment.
G G
H Breach of probation H
I 18. Your conviction places you in breach of the probation order I
made on 3 October 2016 in the Kowloon City Magistracy for the offence
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of claiming to be a member of a triad society 9 . Notwithstanding the
K probation order has now expired you stand to be re-sentenced for that K
offence10.
L L
M 19. I have had the opportunity of reading the case papers including M
the facts admitted by you and the pre-sentence reports called for by the
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magistrate. You admitted that in March 2014 you claimed to an undercover
O police officer that you were a member of the Hang Hau faction of the Wo O
Shing Wo triad society.
P P
9
KCCC1249/2016.
Q Q
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
R power to resentence where the probation order has expired. Having read R v Cousin and the R
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
S S
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
T commission of a further offence shall not give rise to a breach of the probation order. Further the T
requirement in Part III of the schedule ‘Revocation of Order’, that the relevant order is in force is
absent from the Hong Kong legislation.
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A A
B B
20. In the background report prepared for the hearing today the
C probation officer notes that according to your supervising officer you had C
become more mature and had a better self-reflection on your past misdeeds
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and that the case was closed satisfactorily upon the expiry of the probation
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order11. E
F 21. These comments must however be viewed in light of the fact F
that just over two months after being placed on probation you committed
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the present offence and have been remanded in custody since your arrest.
H In these circumstances I cannot agree you completed your probation H
satisfactorily.
I I
J 22. I am satisfied that I should re-sentence you. I am satisfied the J
proper starting point after trial for claiming to be a member of a triad
K K
society is 6 months’ imprisonment. Giving you full credit for pleading
L guilty before the magistrate the sentence is reduced to 4 months’ L
imprisonment.
M M
23. Taking into account totality of sentence I order 2 months
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consecutive and 2 months concurrent to the sentence for trafficking in a
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dangerous drug. The total sentence to be served by you is 4 years’
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imprisonment, which I am satisfied properly reflects your criminality in P
both cases.
Q Q
R R
S S
(D. J. DUFTON)
District Judge
T T
11
See §§11 & 20 of the background report.
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