HKSAR v. So Chi Shing

DCCC 1004/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1004 OF 2016

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REASONS FOR SENTENCE

1.So Chi Shing you have pleaded guilty to one charge of trafficking in 10.26 grammes of a solid containing 9.73 grammes of cocaine, contrary to section 4 of the Dangerous Drugs Ordinance[1]; one charge of escaping from lawful custody, contrary to Common Law and punishable under section 101I of the Criminal Procedure Ordinance[2]; one charge of assaulting a police officer in the due execution of his duty and one charge of resisting a police officer in the due execution of his duty, both offences contrary to section 36 (b) of the Offences Against the Person Ordinance[3].

2.Full particulars of the offences are set out in the facts admitted by you today. 

Trafficking

3.In summary on Friday 29 July last year the police conducted a house search inside your residence.  The police found on the bed inside your residence a metal mooncake box containing 5 transparent re-sealable plastic bags each containing 10 re-sealable plastic bags inside which was the cocaine.  

4.Under caution you admitted the cocaine belonged to you and was for your own consumption.  Mr Hui informs the court that notwithstanding what you told the police you accept all the cocaine was for trafficking and none for your own consumption. 

Escape from lawful custody and assaulting and resisting police officers

5.The following Monday, 1 August, you appeared in Tsuen Wan Magistracy in connection with another case[4]. After the court hearing you requested medical treatment.  You were taken from court to the Yan Chai Hospital.  After medical treatment and when you were about to be taken to the police station you managed to slip off your handcuffs and run away.  SPC 33799 and PC 9404 immediately chased after you. 

6.You ran to the Panda Hotel where you hid in a toilet.  After SPC 33799 told you to come out of the toilet you suddenly rushed out from one of the cubicles and hit SPC 33799 on his head and chest.  SPC 33799 who was guarding the exit of the toilet door took out his baton.  You then bent down and used your body to bump against SPC 33799, who therefore used his baton to hit you. 

7.You then grabbed a yellow sign board which you swung at SPC 33799 causing him to drop his baton.  SPC 33799 then took out his OC foam and warned you to stop.  When you continued with your attack SPC 33799 sprayed you in the face. 

8.You then stopped attacking SPC 33799 and went to wash your eyes.  At this time PC 9404 arrived at the toilet.  You started shouting at the two police officers and told them to let you leave.  You then rushed forward and strangled SPC 33799.  SPC 33799 grabbed your hands while PC 9404 hit you with his baton.  You scratched PC 9404’s face and chest after which you were eventually subdued. 

Mitigation

9.In passing sentence, I have carefully considered everything said on your behalf by Mr Hui, including that you are remorseful and as you told the police you escaped because you wanted to see your girlfriend.  You acted out of impulse when assaulting and resisting the police officers as they tried to apprehend you.  I take into account your young age, only 19 at the time of the offences.

Sentence

10.The courts have equated for sentencing purposes cocaine with heroin[5].  In R v Lau Tak Ming[6]the Court of Appeal laid down guidelines for trafficking in heroin.  The court said that the sentence upon conviction after trial where the quantity of narcotic is up to 10 grammes is between 2 and 5 years imprisonment[7].    

11.Section 109A of the Criminal Procedure Ordinance[8], provides no court shall sentence a person of or over 16 and under 21 years of age to imprisonment unless the court is of the opinion that no other method of dealing with such person is appropriate.  Whilst this provision does not apply to trafficking in a dangerous drug, which is an excepted offence, a court must exercise great care before committing a young offender to prison. 

12.Having already served sentence in a Rehabilitation Centre and a Training Centre and an immediate prison sentence, I am satisfied imprisonment is the only appropriate sentence. 

13.Although you have a poor record, taking into account this is your first conviction for trafficking in drugs, I am satisfied the proper starting point after trial for 9.73 grammes of cocaine is one of 4 years and 9 months imprisonment.  Having indicated on plea day you would plead guilty to this charge you are given full credit for your plea.  You are convicted and sentenced to 3 years and 2 months imprisonment.

Escape from lawful custody and assaulting and resisting police officers

14.In escaping from lawful custody you embarked on a persistent course of violence even after the police officers had used their batons and sprayed you with OC foam. Both police officers received injuries, although not very serious injuries.

15.I am satisfied a starting point of 12 months imprisonment is appropriate for escaping from lawful custody; 8 months imprisonment for assaulting SPC 33799 and 4 months imprisonment for resisting PC 9404.  Having also indicated on plea day you would plead guilty to escaping from lawful custody you are given full credit for your plea on this charge.  You are convicted and sentenced to 8 months imprisonment on charge 2.

16.You however indicated pleas of not guilty to the charges of assaulting and resisting police officers for which a trial hearing was fixed to commence today.  You are therefore only entitled to 25% discount.  You are convicted and sentenced to 6 months imprisonment on charge 3 and 3 months imprisonment on charge 4.

Totality

17.Having taken into account the assault and resisting on the escape from lawful custody charge, I am satisfied concurrent sentences are appropriate for charges 2, 3 & 4.  These offences are however entirely separate and distinct from the trafficking charge.  I am satisfied a wholly consecutive sentence is appropriate.  This makes a total sentence to be served by you of 3 years and 10 months imprisonment, which I am satisfied properly reflects your criminality on the four charges.