HKSAR v. Cheung Ka Lun

HCCC 265/2017

[2018] HKCFI 538

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 265 OF 2017

_______________

_______________

Before: Hon Zervos J in Court

Dates of Hearing: 12 October 2017 and 9 March 2018

Date of Sentence: 9 March 2018

____________________________

REASONS FOR SENTENCE

____________________________

1.This case first came on for sentence on 12 October 2017 but the Court was advised by letter dated 10 October 2017 from the Department of Justice that the police were conducting inquiries as a result of information provided by the defendant which could have a bearing on the sentence to be passed on him. As a result, the parties sought and were granted an adjournment to 14 December 2017. The case was further adjourned to 9 March 2018 as the inquiries were still outstanding on a joint application of the parties under cover of letter dated 8 December 2017 from the Department of Justice.

2.By letter dated 5 February 2018, the Department of Justice advised that the information provided by the defendant was not of value and therefore will not be taken into account when sentencing the defendant in relation to this case. 

3.I should add that there is a tendency for defendants to delay the rendering of assistance by the provision of information to the authorities, causing in consequence delay and interruption to the proceedings of the case.  It should be appreciated by defendants who leave it late to render assistance to the authorities that there is a high chance that their case will proceed to plea and sentence and the issue of assistance will be a matter that will have to be subsequently raised with the executive. 

4.On 7 August 2017, the defendant pleaded guilty in the Magistrate’s Court to a single offence of trafficking in a dangerous drug (Count 1) and two offences of resisting a police officer in the due execution of his duty (Counts 2 and 3).  He was committed to the Court of First Instance for sentence.  Even though the offences took place on 1 September 2016 there were a series of adjournments before the defendant was in a position to indicate how he would plead.  Notwithstanding the prolonged committal proceedings in the Magistrate’s Court, the defendant has entered his plea at the earliest opportunity and he is entitled to a full one third discount.

5.The brief facts giving rise to the offences committed by the defendant are as follows.  In the early morning of 1 September 2016, the defendant was observed by a team of police officers alighting from a taxi and placing a paper cup in a rubbish bin.  The police officers rushed forward intercepted the defendant and retrieved the paper cup from the rubbish bin which contained a black plastic bag with 4 bags of Ice wrapped in tissue paper inside.  The police officers got hold of the defendant and declared arrest.  He shook them off and started swinging his arms around forcefully.  He put up a violent struggle as the police officers tried to subdue him.  During the struggle, the defendant used both hands to forcefully push the chest of one police officer causing him to fall to the ground.  He suffered an abrasion wound on his right hand, right forearm, right leg and left hand.  Another police officer who tried to assist in subduing the defendant by holding his legs was kicked 2 to 3 times by the defendant.  He suffered a 7 cm scratch mark or laceration over his right forearm.

6.The defendant admitted that he was unlawfully trafficking in the drugs in question.  The 4 bags contained a total of 109 g of a crystalline solid containing 103 g of methamphetamine hydrochloride, also known as Ice.  The street value of the Ice at the time of the offence was around $40,000.

7.The defendant is 39 years old.  He was born and grew up in Hong Kong.  He left school after completing secondary 3 level education.  He has variously worked as a maintenance worker, delivery worker and recently as a truck driver.  He has submitted a letter to the Court in which he explains his background and circumstances.  He said that when he was 2 years old his parents divorced and his father subsequently remarried and had a family.  He felt rejected and mixed with a bad element.  He explained that he became addicted to drugs and committed several drug-related offences.  However, since his period in custody as a result of this offence his family members have rallied around him and have come to see him, including his father and his step mother, brother and sister.  He said his determined to change his ways and turn over a new leaf, and will not let his family down.  A letter was also submitted from Deacon Peter Wong who has met the defendant whilst in custody.  He speaks favourably about the defendant and asks for leniency on his behalf.

8.The defendant clearly has had a drug addiction problem and a disrespect for the law as evidenced by his criminal record.  In 1992, he was convicted of possession of dangerous drugs for which he was put on probation for 12 months.  In 2001, he was convicted of possession of dangerous drugs for which he was put on probation for 24 months.  In 2003, he was convicted of possession of dangerous drugs, possession of equipment for the consumption of drugs and breach of probation order for which he received a DATC order.  In 2006, he was convicted of trafficking in dangerous drugs for which he was sentenced to 12 months’ imprisonment.  In 2009, he was convicted of dangerous driving causing death for which he received a DATC order which would indicate that he was assessed as being under the influence of drugs.  In 2013, he was convicted of possession of dangerous drugs for which he again received a DATC order.

9.The defendant has pleaded guilty to two sets of offences.  One set concerns the single offence of trafficking in a dangerous drug.  The other set concerns two offences of resisting a police officer in the due execution of his duty. 

10.In respect of the trafficking offence, the tariff guideline for trafficking in Ice is set out in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691.  It fixes a tariff for a narcotic content of between 70 g and 300 g of Ice of 11 to 15 years’ imprisonment.  On an arithmetic calculation, the starting point according to the tariff for 103 g of narcotic content is 11 years and 6 months’ imprisonment.  The defendant has pleaded guilty at an early opportunity and is entitled to a one third discount which brings his sentence on the trafficking offence to 7 years and 8 months’ imprisonment. 

11.In respect of the resisting a police officer offences, sentences obviously vary depending on the nature and degree of the offending involved.  But whatever the circumstances, the courts take very seriously any form of disrespectful behaviour towards a police officer lawfully carrying out his duties, particularly when such disrespectful behaviour involves acts of violence and aggression.  In such circumstances, sentences in this kind of case carry a heavy deterrent element.  In the present case, the defendant was arrested by the police officers and he violently struggled and resisted them, causing some injuries to the officers involved even though such injuries were of a minor nature.  The approach the courts take in respect of such offences was explained in HKSAR v LIU Lin-feng, CACC 206/2011, 28 February 2012, unreported, at paragraph 55, where the following quoted passage from Secretary for Justice v Ko Wai Kit [2001] 3 HKLRD 751, at 758, was relied upon.

“The judge imposed a sentence of one week’s imprisonment for resisting nine officers in the execution of their duty, as a result of which conduct the respondent caused them injuries, even though none seriously. The maximum term for resisting an officer in the execution of his duty is one of two years’ imprisonment. The sentence to be imposed for such cases must carry a heavy deterrent element, for it is vital that those engaged to execute police duties are enabled properly to do so. … It suffices to say that in this case, the duty of the officers which they were seeking to execute, was to effect an arrest in a serious case; and the resistance offered was violent, and one which occasioned injury to several of the officers. One week’s imprisonment for that sort of conduct is manifestly inadequate. The correct starting point for the respondent’s conduct was a term of 18 months’ imprisonment.”

12.This quoted passage should be considered in light of other cases where shorter terms of imprisonment have been imposed where the nature of the resistance or any resultant injury to the police officer is of a minor nature.  The Court in LIU Lin-feng considered a starting point of 4 ½ months’ imprisonment entirely appropriate where the applicant resisted several police officers who sustained minor injuries, not dissimilar in nature to the injuries sustained by the police officers in the present case.  I will adopt the same starting point of 4 ½ months’ imprisonment on each of Counts 2 and 3, which I reduce by one third for the defendant’s guilty plea, thereby resulting in a sentence on each count of 3 months’ imprisonment. 

13.Taking into account the totality principle, I order that the sentences on Counts 2 and 3 be served concurrently and that 2 months of the concurrent sentences of 3 months on Counts 2 and 3 be served consecutively to the term of imprisonment of 7 years and 8 months’ imprisonment on Count 1.  This results in a sentence of 7 years and 10 months’ imprisonment. 

Mr Bobby Cheung, SPP of Department of Justice, for HKSAR

Mr Paulinus Lo, instructed by Krishnan & Tsang, assigned by Director of Legal Aid, for the defendant