HKSAR v. Leung Pak Lung

DCCC 318/2018

[2018] HKDC 1335

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 318 OF 2018

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Reasons for Sentence

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1.The Defendant has pleaded guilty to a total of four charges, namely, 1) Trafficking in dangerous drugs, 2) Possession of Offensive Weapon, 3) Having custody or control of a counterfeit currency note and 4) Possession of an identity card relating to another person.

2.The prosecution case is straightforward.  The Defendant was spotted suspicious by two police constables when he appeared in the vicinity of Fuk Wah Street in Sham Shui Po at around 10:40am on 12 January 2018.  A search was done and it was discovered that the Defendant was holding a plastic bag containing 2.81g of dangerous drug which is commonly known as “ICE”.  In his shoulder bag, 1 plastic bag containing 0.22g ICE and 4 foil packs containing 0.26g nimetazepam in the form of 26 tablets were found.  There was also a number of re-sealable plastic bags inside a wallet kept in his bag.  The Defendant was arrested and cautioned under which he replied that an “Ah-Tung” paid him $500 for him to take these items to there.  This forms Charge 1.

3.A further search had discovered a black 32cm knife which the Defendant said again it was given to him by Ah-Tung for the purpose of collecting debts.  The Defendant was arrested and cautioned again.  This forms Charge 2.

4.The Defendant was then taken back to the Sham Shui Po Police Station in which he was arrested for the 3^rd and 4^th Charges because of the finding of his possession of a counterfeit $500 banknote and a Hong Kong ID Card belonging to a CHAN Kwok To.  The Defendant claimed that they were given to him by Ah Tung as well.  The $500 banknote, he said, was the reward for delivering the drugs and plastic bag for Ah Tung in Charge 1.  The Defendant also said that his own ID Card was taken away by Ah Tung because the Defendant owed him money.  In return, he was given the ID Card of CHAN.

Mitigation

5.D is now 37 living with his parents and younger brother.  He was working as a delivery worker at the airport earning around $30,000 per month.  However, it is sad to know that the Defendant is a drug addict with a history of abuse of dangerous drugs for the past 10 years.  Before the present remand, he used to spend $10,000 per month on drugs. 

6.According to the criminal record, the Defendant has 3 previous convictions for possession of dangerous drugs.  He was sent to the DATC in 2016.  He also has a conviction similar to Charge 4 which however took place in many years ago.

Consideration

7.Mr. To has helpfully submitted to this Court a number of on-the-point case authorities. 

8.Regarding Charge 1, Mr. To submits that a valuable guidance can be found in the case of HKSAR v Wong Kin Kau [2010] 4 HKC 443.  The Court of Appeal in that case referred to the case of HKSAR v KO Ka-hing [2009] 4 HKLRD 856 regarding the “Individual Approach” and the “Combined Approach”.  Mr To suggests this Court to adopt the “Combined Approach” in the present case and he also places much emphasis on the remark of the Court of Appeal in Ko Ka-hing that “no such adjustment is required if the less serious drug is present in insignificant quantity” (see p.445). 

9.In the present case, the total quantity of ICE was 3.03g.  It falls within the lowest band of the sentencing guidelines set down in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, which is 3 – 7 years for this narcotic of up to 10g.  I shall adopt 4 years as the starting point.  For the 0.26g of nimetazepam, I agree that the quantity is insignificant and the above remark in Ko Ka-hing is on the point.  I shall not adjust the sentence for Charge 1 in the formula in applying the “Combined Approach”.  That said, the first Charge remains a very serious offence.

10.For Charge 2, I have considered the case of HKSAR v CHAN Kam Che CACC357/2016 in which Macrae JA (as he then was) endorsed the approach in HKSAR v IP Chi Wang HCMA377/2003 where the applicant was given a 9 months’ imprisonment as the starting point for the offence of possession of offensive weapon.  The facts of the case before Macrae JA are similar to the present case.  Suffice it to say, I find that the knife is per se an offensive weapon and when it was for the purpose of debts collection, I shall take a serious view on Charge 2.  Section 33(1) of the Public Order Ordinance, Cap.245, specifies a term of imprisonment of not more than 3 years and this offence is an Excepted Offence under the Criminal Procedure Ordinance, Cap.221.  In all the circumstances of the present case, I shall adopt a 9 months’ imprisonment as the starting point.   

11.For Charge 3, again Mr To has helpfully referred me to a case of 香港特別行政區訴馮仕柏 HCMA177/2015.  That case also involves a section 100(2) offence which carries only 3 years’ imprisonment as the maximum penalty which is much lesser than that for a section 100(1) offence.  The Appellate Court considered that a starting point of 18 months’ imprisonment was excessive for 9 counterfeit $500 banknotes. Mr To submits, and I agree, that the present case only involves 1 counterfeit $500 banknote and the Defendant should be treated more leniently.  I shall adopt a 9-month starting point for Charge 3.

12.Regarding Charge 4, the authority of HKSAR v Li Chang Li [2005] 1 HKLRD 864 provides a general guideline of 18-month starting point for offences involving forged or other’s but genuine ID card. Mr To suggests that the Applicant in HKSAR v FAN King Lam CACC220/2010 who possessed two genuine ID card had received a starting point of 18 months, the Defendant in this case had possessed only one and therefore the Defendant could be dealt with more leniently.  Whilst I believe that the 18-month starting point is not a straightjacket, the Defendant should understand that this offence is serious based on what he had been imposed in the past for a similar offence.  I do not hold that previous conviction against the Defendant because after all, it took place many years ago.  However, in light of all the circumstances, I do not see there exists anything which justifies a departure.  Possession of one identity card belonging to another person is a serious offence.  I shall adopt the 18 months’ imprisonment as the starting point for the present case.

13.The Defendant has entered a plea of guilty for all the charges. I shall reduce each of the sentences by 1/3.  I do not see any further reduction justified.

14.For Charge 1, the sentence is 32 months’ imprisonment.

15.For Charge 2, the sentence is 6 months’ imprisonment.

16.For Charge 3, the sentence is 6 months’ imprisonment.

17.For Charge 4, the sentence is 12 months’ imprisonment.

18.These offences are distinct and separate in nature.  However, I shall take into consideration the totality principle and a total consecutive sentence would be excessive in all the circumstances of the present case.

19.Having carefully considered, I order 2 months in Charge 2 and 3, and 3 months in Charge 4 to be served consecutive to that of Charge 1 making it a total of 39 months’ imprisonment (i.e. 32+2+2+3).