HKSAR v. Wong Chun Shing

DCCC 1080/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1080 OF 2016

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REASONS FOR SENTENCE

1.The defendant pleaded guilty to 1 charge of "Resisting a police officer" (Charge 1); 2 charges of "Trafficking in dangerous drugs" (Charges 2 and 4) and 1 charge of "Possession of Part I Poison" (Charge 3).

Summary of Facts

Charge 1

2.About 11:50 p.m. on 21 August 2016, a group of police officers were on duty in plainclothes at Wan Hang House, Wan Tau Tong Estate, Tai Po.  They saw the defendant holding a plastic bag in his right hand walking at the staircase between the 13^th and the 14^th Floors.  When PC 11490 (PW1) tried to intercept him, the defendant turned around and tried to flee.  PW1 grabbed the defendant's T-shirt and repeatedly warned him to comply, but he put up a fierce struggle and slipped out of his T-shirt.  PW1 held onto the defendant's waist and the struggle continued.  The defendant was finally subdued when reinforcement arrived.

3.PW1 was later found to have sustained a fresh injury of redness on his left forearm.  The defendant refused to go to the hospital and he was treated at the scene for abrasions on his left toe.

Charge 2

4.During the struggle with PW1, the defendant tore open the plastic bag which he was holding and 23 smaller plastic bags fell out (2 of them being E1; and the remaining 21, E2).  E1 was later found to contain a total of 0.97 gramme of a powder containing 0.33 gramme of ketamine; and E2, a total of 4.22 grammes of a solid containing 3.54 grammes of cocaine.

5.Under caution, the defendant claimed that the drugs were for his own consumption and that he did not intend to injure PW1.

Charges 3 and 4

6.The defendant's residence on the 12^th Floor of Wan Hang House was searched.  The Police found hidden in the upper track of the sliding door of the defendant's bedroom:  (i) 1 plastic bag which contained 13.1 grammes of a powder containing para-aminobenzenesulphonamide (E3; a Part I poison); (ii) 2 plastic bags which respectively contained 6.63 grammes of a solid containing 3.23 grammes of ketamine and 0.55 grammes of a powder containing 0.15 gramme of ketamine (E4 and E5); and (iii) 1 plastic bag containing 17 plastic bags which contained a total of 3.95 grammes of a solid containing 3.38 grammes of cocaine (collectively E6).  An electronic scale was also found in the defendant's bedroom.

7.Under caution, the defendant claimed that the drugs found were for his own consumption and they did not concern his family.

8.In his video-recorded interview, the defendant claimed that he had just purchased E1 and E2 and intended to consume them at the staircase.  He described in details how and from whom he purchased E1 and E2.  He admitted that he tried to flee and tore open the plastic bag containing E1 and E2 because he was scared.  Regarding E3, the defendant claimed that he did not remember whom it belongs to.  He admitted having purchased E4 to E6 from the same person who sold him E1 and E2.  He claimed that he would use the electronic scale to weigh the drugs to avoid being cheated.

Mitigation & Sentence

9.The defendant is 24 and has 1 conviction record (a "simple possession" offence for which he was sent to a Drug Addiction Treatment Centre).  Defence solicitor Ms. CHAN informed me that the defendant was raised in a single-parent family; his father did not maintain contact with them.  Prior to the present offence, the defendant was a decoration worker earning a stable income.  He resides with his mother and 2 elder sisters. 

10.In mitigation, Ms. CHAN submitted that the defendant claims partial self-consumption of the drugs found, but he is unable to specify the quantity.  Prosecuting counsel Mr. FONG submitted that based on the packaging of the drugs and the presence of an electronic scale, the prosecution is unable to accept any claim for self-consumption (partial or otherwise).  A joint letter written by the defendant's mother and sisters was placed before me; they pleaded that the defendant makes financial contribution to the family faithfully.  He committed the present offence due to financial pressure.

11.A clear message must be conveyed to the general public that "drug trafficking" is a serious crime and that drug traffickers would most certainly be punished by long-term imprisonment even for fresh offenders, so that there is a deterrent effect.

12.The Court of Appeal has laid down clear sentencing guidelines for trafficking in ketamine (see SJ v HII Siew Cheng [2009] 1 HKLRD 1) and cocaine (see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 and The Queen v LAU Tak-ming & others [1990] 2 HKLR 370).  For up to 10 grammes of ketamine, the sentence ranges from 2 to 4 years' imprisonment. For up to 10 grammes of cocaine, the sentence ranges from 2 to 5 years' imprisonment. 

13.In determining the proper starting point, I have reminded myself of the sentencing principles for trafficking in cocktail drugs stated in HKSAR v YIP Wai-yin & another CACC 80/2003, HKSAR v CHENG Yat-ming CACC 455/2006 and HKSAR v CHAN Yuk-leong CACC 318/2013.

Charge 2

14.The defendant trafficked in a cocktail of drugs consisting of 0.33 gramme of ketamine and 3.54 grammes of cocaine.  For the purpose of sentencing, I am prepared to ignore the extremely small quantity of ketamine involved in this charge.  For 3.54 grammes of cocaine, the appropriate starting point is 3 years.

15.Based on the packaging of E2 (in 21 small plastic bags) and the lack of particulars on self-consumption supplied by the defendant, I would not grant him any discount for self-consumption for this charge.

16.A one-third discount is given for the guilty plea, reducing the sentence to 2 years.   Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 2 years' imprisonment for this charge.

Charge 4

17.The defendant trafficked in a cocktail of drugs consisting of 3.38 grammes of ketamine and 3.38 grammes of cocaine.  For 3.38 grammes of ketamine, the appropriate starting point is 2.5 years.  For 3.38 grammes of cocaine, the appropriate starting point is 3 years.  The "combined approach" would arrive at a realistic and fair sentence. 

18.In terms of potency, 3.38 grammes of cocaine should form the basis of the starting point.  Hence, I adopt a starting point of 3 years' imprisonment and adjust it upward by 9 months for the ketamine portion, arriving at 45 months.

19.Regarding the claim for self-consumption, I have reminded myself of the relevant sentencing principles[1]. Based on the packaging and quantity of the ketamine (E4 and E5), I accept that there is a possibility that they were intended for the defendant's consumption.  On the other hand, the packaging of the cocaine (E6) strongly indicated that they were intended for trafficking.  Furthermore, I cannot overlook the fact that an electronic scale was found in the defendant's bedroom, which is cogent evidence of trafficking.  I am prepared to reduce the sentence to 42 months[2] as a nominal discount for self-consumption.

20.A one-third discount is given for the guilty plea, reducing the sentence to 28 months. I sentence the defendant to 28 months' imprisonment for this charge.

Charge 1

21.Resisting a police officer in due execution of his duty is a serious matter[3].  The defendant struggled with PW1 causing redness on his left forearm.  Police officers carrying out their duties must be protected.  I adopt a starting point of 3 months' imprisonment.  A one-third discount is given for the guilty plea, reducing the sentence to 2 months.  The sentence for this charge is 2 months' imprisonment.

Charge 3

22.For 13.1 grammes of para-aminobenzenesulphonamide, I adopt a starting point of 3 months' imprisonment.  With the guilty plea, the sentence is reduced to 2 months.  I sentence the defendant to 2 months' imprisonment for this charge.

Overall Sentence

23.Bearing in mind the total quantities and nature of the drugs involved in Charges 2 and 4 (namely 3.38 grammes of ketamine[4] and 6.92 grammes of cocaine), I consider a global starting point of 57 months[5] to be appropriate for both charges.  Given the nominal discount of 3 months for self-consumption, the sentence is reduced to 54 months.  With the guilty pleas, the overall sentence for both charges is further reduced to 36 months.

24.Adding Charges 1 and 3, I consider an overall sentence of 38 months to be appropriate for all 4 charges.

25.Hence, I order the sentences to run in the following manner :-

(i) 8 months in Charge 2 to run consecutive to Charge 4;

(ii) 1 month in Charge 1 to run consecutive to Charges 2 and 4; and

(iii) 1 month in Charge 3 to run consecutive to Charge 1, 2 and 4.

Thus, arriving at a total prison term of 38 months.