A A
B B
DCCC 1152/2018
[2019] HKDC 865
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO. 1152 OF 2018
E
____________ E
HKSAR
F v F
YAN QINDA (D1)
G G
SIU HOI YIN, DICK (D2)
H ____________ H
I Before: HH Judge Dufton I
Date: 10 July 2019
J Present: Mr James Chak, PP, of the Department of Justice, J
for HKSAR
K Mr Jeff Ho instructed by Wong & Co, K
assigned by the Director of Legal Aid, for D1
Mr Karl Keung instructed by S.H. Chou & Co,
L L
assigned by the Director of Legal Aid, for D2
Offences: Trafficking in a dangerous drug (販運危險藥物)
M M
REASONS FOR SENTENCE
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O 1. D1 pleads guilty to two charges of trafficking in a dangerous O
drug (charges 1 & 2), contrary to section 4 of the Dangerous Drugs
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Ordinance1. D2 pleads guilty to one charge of trafficking in a dangerous
Q drug (charge 2). Q
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2. Full particulars of the offences are set out in the facts
S
admitted by D1 and D2 on 5 June 2019. S
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1
Cap 134.
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2
A A
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3. In summary in the afternoon of 17 August 2018 the police
C conducted anti-narcotics operation in Lei Yu Mun Estate in Yau Tong. C
D 4. At about 1645 hours DSGT 3098 saw D2 and a boy, aged 10, D
wandering together outside the ground floor of Lei Sang House (Block 1).
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At about 1722 hours D1 joined D2 and the boy.
F F
5. D1, D2 and the boy then walked near to the exit/entrance of
G G
the carpark outside Lei Sang House where D1 took out a white object
H from the right front pocket of his trousers and passed it to the boy. The H
boy put the white object into the right front pocket of his trousers.
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6. When D1 separated from D2 and the boy the police
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intercepted D1, D2 and the boy for investigation.
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7. Upon search D1 took out from his right shoe six transparent
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re-sealable plastic bags containing a total of 5.19 grammes of a solid
M containing 2.87 grammes of cocaine (charge 1). M
N 8. Upon search DPC 14582 found in the right front pocket of N
O
the boy’s trousers five transparent re-sealable plastic bags contained in a O
plastic bag and wrapped by white tissue paper. The five transparent re-
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sealable plastic bags contained a total of 4.30 grammes of a solid
Q
containing 2.25 grammes of cocaine (charge 2). Q
R 9. The estimated street value of the cocaine was $14,700. R
S S
10. Under caution and in a subsequent video recorded interview
T D1 admitted, inter alia, that he was asked by Ah Cheung to deliver eleven T
packets of cocaine; he would earn $100 for every packet of cocaine he
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delivered; he was instructed to pass five packets to two persons; he met
C D2 and the boy and gave five packets to the boy and $100 to D2; and that C
the other six packets would be delivered to other persons.
D D
11. Under caution and in a subsequent video recorded interview
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D2 admitted, inter alia, that he was asked by an unknown male to do a job
F for a reward of $100; D2 was told to go to the ground floor of Lei Sang F
House; D2 contacted the boy promising him a reward of $50; they waited
G G
outside Lei Sang House where D2 received a call asking him to wait for a
H male; D1 arrived in a taxi and gave the boy an item wrapped by tissue H
paper; D1 told D2 and the boy that the item contained dangerous drugs
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and warned them to watch out for the police; D1 gave $100 to D2 as
J transportation fee and told D2 and the boy to wait for a phone call. J
K K
D1
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Mitigation
M M
12. I have carefully considered everything said on behalf of D1
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by Mr Ho, including that at the time D1 was only 17 and was remorseful.
O D1 says he wishes to learn some skills while serving his sentence 2. O
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13. D1 is a young offender, now 18. Section 109A of the
Q
Criminal Procedure Ordinance3, provides no court shall sentence a person Q
of or over 16 and under 21 years of age to imprisonment unless the court
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is of the opinion that no other method of dealing with such person is
S appropriate. Whilst this provision does not apply to trafficking in a S
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2
See §1 of the skeleton submission of D1’s mitigation.
3
Cap 221.
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dangerous drug, which is an excepted offence, a court must exercise great
C care before committing a young offender to prison. C
D 14. I therefore called for a Training Centre suitability report D
before passing sentence to provide the court with further information
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about D1.
F F
15. The report reveals that in 2012 D1 together with his mother
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came to Hong Kong to live with his step-father. D1’s mother however
H stayed most of the time in the Mainland. H
I 16. D1 was unable to catch up with the school curriculum in I
Hong Kong and failed most of his subjects both in primary school and
J J
secondary school. D1 became affiliated with dubious classmates and
K under their influence joined the San Yee On triad society in December K
2015.
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M 17. D1 was soon in trouble committing offences of robbery and M
theft for which he was placed on probation. D1 was first arranged to
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reside in Youth Outreach Transitional Housing for Boys and later at Tuen
O Mun Children and Juvenile Home. D1 managed to behave himself and O
on release resumed living with his mother.
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Q
18. D1 enrolled in a three-year diploma in fitness and sports Q
studies but quit after six months and started working part-time as a waiter.
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Owing to poor work attitude D1 was dismissed. In need of money D1
S was tempted to traffick in dangerous drugs and started trafficking in S
cocaine daily in May 2018.
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19. D1 gave the impression of being a disoriented youngster who
C did not formulate a concrete future rehabilitation plan even after a ten- C
month remand period.
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20. D1 is considered suitable for a period of disciplinary training,
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a view endorsed by his mother, who regards her son as immature and in
F need of close guidance and supervision. D1 says he does not want to go F
to a training centre.
G G
H 21. The appeal courts have made very clear that save in very rare H
cases a Training Centre Order should not be imposed for trafficking in
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substantial quantities of dangerous drugs4.
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22. After very careful consideration I am satisfied that this is not
K one of those very rare cases where a Training Centre Order would be K
appropriate. D1 whilst young, is not of extreme youth. D1 does not have
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a clear record having convictions for theft and robbery and committed the
M offences for earning fast money. I am satisfied there are no exceptional M
circumstances warranting departure from the guidelines.
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O Guidelines O
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23. The courts have equated for sentencing purposes cocaine
Q
with heroin 5 . In R v Lau Tak Ming the Court of Appeal laid down Q
6
guidelines for trafficking in heroin . The court said that the sentence
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4
S See for example Secretary for Justice v Ko Fei Tat [2002] 4 HKC 59; Secretary for Justice v Lau S
Shing Kit [2012] 5 HKLRD 297; HKSAR v Pau King Kong [2013] 3 HKLRD 676 and Secretary
for Justice v Chau Tsz Tim [2015] 1 HKLRD 853.
T 5 T
See Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69.
6
[1990] 2 HKLR 370.
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upon conviction after trial where the quantity of narcotic is up to 10
C grammes is between 2 and 5 years’ imprisonment. C
D Starting points D
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Cocaine
F F
24. On a purely arithmetical approach a starting point of just
G over 2 years and 10 months’ imprisonment would be appropriate for G
trafficking in 2.87 grammes of cocaine and 2 years and 8 months’
H H
imprisonment would be appropriate for trafficking in 2.25 grammes of
I cocaine. I
J J
25. Taking into account D1’s young age and that he has no
K previous drug convictions I adopt starting points of 2 years and 9 months’ K
imprisonment and 2 years and 6 months’ imprisonment.
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26. Giving D1 full credit for his pleas of guilty reduces the
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sentences to 1 year and 10 months’ imprisonment and 1 year and 8
N months’ imprisonment. N
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Section 56A of the Dangerous Drugs Ordinance
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27. Section 56A of the Dangerous Drugs Ordinance provides
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that a more severe sentence may be passed where the commission of the
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offence involves a minor. D2 was 14 at the time of the offences and the R
boy was only 10. The imposition of a more severe sentence is
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discretionary.
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28. Section 56A only applies where the offender himself is not a
C minor. In HKSAR v Ng Hon Keung (referred to the court by Mr Chak) C
7
the Court of Appeal held that a minor is anyone below 18 .
D D
29. At the time of the offences D1 was 17. In the circumstances
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I am satisfied section 56A does not apply8.
F F
30. If the date of sentence is the relevant date in determining
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whether the offender is himself a minor or an adult for the purposes of
H section 56A, I am satisfied by reason of the fact that D1 was a minor at H
the time of the offence I should exercise my discretion by not imposing a
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more severe sentence.
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Totality
K K
31. I agree with Mr Ho that the cocaine subject of the two
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charges having been found at the same time the combined total of cocaine
M should be looked at when considering sentence9. M
N 32. On a purely arithmetical approach a starting point of just N
O
over 3 years and 6 months’ imprisonment would be appropriate for O
trafficking in 5.12 grammes of cocaine. Giving full credit for a plea of
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guilty would result in a sentence of 2 years and 4 months’ imprisonment.
Q Q
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S S
7
[2012] 1 HKLRD 1017 at §14.
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8
Also see D1’s written submission on S56A.
9
See §2 of the skeleton submission of D1’s mitigation.
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33. I am satisfied a total sentence of 2 years and 4 months’
C imprisonment properly reflects D1’s overall criminal culpability on the C
two charges and takes into account D1’s personal circumstances and the
D D
seriousness of the offences10.
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34. D1 is convicted and sentenced as follows:
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Charge 1 – 1 year and 10 months’ imprisonment;
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Charge 2 – 1 year and 8 months’ imprisonment with 6 months
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consecutive and 14 months concurrent to charge 1;
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The total sentence to be served by D1 is 2 years and 4 months’
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imprisonment.
K K
D2
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Mitigation
M M
35. I have carefully considered everything said on behalf of D2
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by Mr Keung, including that D2 has a clear record and is currently a
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Form 2 student11. I have read the two mitigation letters written by D2.
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36. D2 is 15, 14 at the time of the offence and for sentencing
Q purposes is regarded as a young person12. Section 11 (2) of the Juvenile Q
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10
S See HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690 and HKSAR v Pau King Kong [2013] 3 S
HKLRD 676.
11
Sentence was initially adjourned to enable D2 to sit his end of year exams. See §§2, 3, 4 & 7 of
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D2’s written mitigation.
12
See section 2 of the Juvenile Offenders Ordinance, Cap 226.
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Offenders Ordinance13 provides that no young person shall be sentenced
C to imprisonment if he can suitably be dealt with in any other way. C
D 37. Section 3F (1) of the Juvenile Offenders Ordinance provides D
that if a young person is found guilty of an offence other than homicide
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by any court other than a juvenile court, the court shall unless satisfied
F that it would be undesirable to do so, remit the case to a juvenile court. F
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38. Mr Keung submits that as D2 is jointly charged with D1 both
H defendants should be dealt with together. H
I 39. I am satisfied that D2 being jointly charged with D1 and that I
a major consideration in sentence of both D1 and D2 is whether there are
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exceptional circumstances warranting departure from the guidelines for
K trafficking in cocaine, it would be undesirable to remit the case to a K
juvenile court14.
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M 40. In view of D2’s young age I called for a Training Centre M
suitability report before passing sentence to provide the court with further
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information about D2.
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41. The report reveals that D2 comes from a broken family.
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Lacking adequate parental supervision D2 turned rebellious and was
Q
arranged to study in a boarding school since Primary Three. D2 showed Q
improvement, ranking first in English and showing no significant
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behavioural problems.
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T 13 T
Cap 226.
14
See for example HKSAR v Chu Ka Yin [2017] 3 HKLRD 1046.
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42. After entering secondary school D2 started to mingle with
C undesirable peers and turned wayward. School performance deteriorated, C
D2 failing most subjects in Form 1.
D D
43. Sometimes D2 would not return home resulting in a Care
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and Protection Order being made in February last year. D2 was said to
F have a positive attitude towards counselling but repeatedly failed to return F
to boarding school and on one occasion escaped from the boarding school.
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H 44. In June last year D2 joined the San Yee On triad society and H
soon ran into trouble. In August D2 committed the present offence. D2
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was placed on bail and continued to mingle with his triad peers.
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45. D1 ranked last in his class and was required to repeat Form 2.
K According to Ms Wong, the school social worker, D2 is a troublesome K
student whose conduct was poor including threatening school teachers,
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speaking foul language to teachers, smoking and fighting with classmates.
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46. Ms Wong believes disciplinary training would benefit D2
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and that school placement will not be reserved for him15.
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47. D2 appeared to be a playful youth who was susceptible to
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undesirable influence. D2’s mother showed great concern and believed
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her son had learnt a lesson for his misdeeds during the remand period. Q
D2’s mother asked for a lenient sentence and promised her support in his
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rehabilitation.
S S
T T
15
See Part III of the report.
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48. The Rehabilitation Assessment Officer detected little sense
C of remorse and sincerity to turn over a new leaf was in great doubt. In his C
mitigation letters D2 says he has reflected on his past behaviour and
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promises never to commit any offence ever again.
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49. D2 is considered mentally and physically fit for detention in
F a Training Centre. On the information available and after a general F
assessment of his behaviour and attitude on remand, the Rehabilitation
G G
Assessment Officer considers D2 suitable for detention in a Training
H Centre. H
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50. In his mitigation letter D2 asks for a non-imprisonment
J sentence. Mr Keung informs the court that D2 agrees the content of the J
report and although he would prefer to go to a reformatory school he
K K
nevertheless accepts the recommendation in the report.
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51. After very careful consideration and taking into account D2
M has a clear record and was only 14 at the time of the offence, I am M
satisfied that this is one of those very rare cases where a Training Centre
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Order would be appropriate. I am satisfied that it would be in the interest
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of D2 and that of the community that D2 undergoes a period of training in
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a Training Centre16. P
Q 52. D2 is sentenced to detention in a Training Centre. Q
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(D. J. DUFTON)
District Judge
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16
See Wong Chun Cheong v HKSAR (2001) 4 HKCFAR 12.
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