HKSAR v. Lo Kong Ho

DCCC 397/ 2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 397 OF 2009

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Reasons for Sentence

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The charges and facts

1.The Defendant pleads guilty to trafficking in a dangerous drug, namely 116.81 grammes of ketamine (1^st charge), assaulting a police officer acting in execution of duty (2^nd charge), and two charges of resisting arrest (3^rd and 4^th charges).

2.At 12:25 a.m. on 12^th February 2009, the police set up a roadblock at the junction of Cameron Road and Carnavon Road, Tsimshatsui.  The Defendant was turning to Cameron Road from Chatham Road South.  When he saw the police, he instantly turned back.  He was holding a bag, which transpired later to contain 46 plastic bags of powder containing 116.81 grammes of ketamine (1^st charge).  WPC 4267 followed him to the junction of Prat Avenue and Chatham Road South.  As he was waving for a taxi, she intercepted him and declared police identity.  He pushed her chest so that she had to step backward (2^nd charge).  She suffered minor injuries. 

3.He discarded the bag with contents.  Other police officers came to assist her.  WPC 4267 picked up the bag with contents.  He put up a struggle in resisting the arrest made by PC 2166 and PC 51491, who also suffered minor injuries. 

Mitigating put forward

4.The Defendant is 19 years of age.  He was education up to F5.  His parents divorced when he was very young.  He lived with his mother.  He could not get along with his mother or his stepfather.  He had frequent quarrels with them.  He mixed with bad peers and became addicted to drugs.  He used drugs as a painkiller.     

5.He was sentenced to 6 years’ imprisonment on 20 March 2009 for a similar offence relating to cocaine and ketamine (DC 1036/08).  The offence took place on 21 June 2008.  He committed the present offence whilst on bail for DC 1036/08. 

6.His solicitor submits as mitigating factors:

(1)  his young age, being 19 at the time of the offence;

(2)  the present case be given a meaningful discount within the jurisdictional limit of the District Court;

(3)  the sentence in DC 1036/08 be considered in the overall sentence by totality. 

7.On the return day of sentence, his solicitor also puts forward a report from the Yang Memorial Methodist Social Service.  It recounts the history of the Defendant’s file since July 2008.  The service centre lost contact of the Defendant between January and March 2009.  One can note the present offence taking place on 12 February 2009.    The Defendant told the reporting social worker that he had committed the present offence as he could not earn sufficient money for his personal and drug spending.  The reporting social worker pleads for leniency and a chance for guidance.   

Sentencing principles

Guidelines applicable to ketamine traffickers

8.The Court of Appeal in Secretary for Justice v Hii Siew Cheng CAAR 7/2006 had laid down sentencing guidelines for trafficking in ketamine as follows:

(1)  up to 1 gramme – within the sentencer’s discretion;

(2)  over 1 gramme to 10 grammes – 2 to 4 years’ imprisonment;

(3)  10 to 50 grammes – 4 to 6 years’ imprisonment;

(4)  50 to 300 grammes – 6 to 9 years’ imprisonment;

(5)  300 to 600 grammes – 9 to 12 years’ imprisonment;

(6)  600 to 1000 grammes – 12 to 14 years’ imprisonment; and

(7)  over 1000 grammes – 14 years upwards.  

9.The present quantity of 116.81 grammes is within the band of 6 to 9 years’ imprisonment.

Sentences for assaulting and resisting police officers

10.Both offences are under section 63 of the Police Force Ordinance, Cap. 232.  The maximum penalty is a fine of $5,000 and 6 months’ imprisonment.  There are no sentencing tariffs or customary sentences.   

Young age

11.In Attorney General v Li Chi-ko [1987] HKLR 1233 a 20-year-old defendant who committed robbery was not regarded young for a discount.   The Court of Appeal held that, youth of itself was not such an exceptional circumstance, although extreme youth may be (per Yang, then-Acting C.J., at 1234). 

Committing an offence whilst on bail for another offence

12.In HKSAR v Yuen Gang-shing Cr App 303/ 1997, the Deputy Judge adopted a starting point of 7 years’ imprisonment on the ground that the 1 year on top of the 6 years was due to the applicant’s having committed the offence whilst he was on bail.  In upholding the sentence, Liu JA said in para. 5 of the Judgment:

Commission of any offence whilst on bail is unquestionably an aggravating factor to be taken into account as did the Deputy Judge.

13.In HKSAR v Ngo Wai-kuen Cr Apps 191 & 334/ 2004, the applicant was put on bail for the offence of possession of a dangerous drug (Charge 1).  She then committed another offence of possession of a dangerous drug (Charge 2) and the offence of keeping a divan (Charge 3).  Stuart-Moore VP said in para. 9 of the Judgment:

Each offence was committed on a wholly separate occasion.  Indeed, it is a significant aggravating feature that the second and third offences in the sequence were committed whilst the applicant was on bail. 

14.Section 82(2)(a) of the District Court Ordinance, Cap. 336, states as follows:

[N]o sentence of imprisonment passed by the Court shall exceed 7 years in respect of one offence and where 2 or more consecutive terms of imprisonment are imposed by the Court under subsection (1), the aggregate of the said terms of imprisonment shall not exceed 7 years.

15.In HKSAR v Li Yan CACC 84/1998, the applicant pleaded guilty to robbery (1^st charge) and unlawful remaining (2^nd charge).  The judge sentenced him to a total of 7 years’ imprisonment, namely 6 years’ and 1 year’s consecutive terms.  On appeal it was argued that the sentence was wrong in principle because it allowed the applicant no benefit for his plea as the judge could not have passed a longer sentence after trial.  After reviewing the authorities, Mortimer VP said:

8.  The cases cited above demonstrate – and it is self-evident – that justice requires a further meaningful discount should be given from the maximum of 7 years after plea in those cases which would attract 7 years or more as the proper sentence which the court ought to impose.  This is to give the accused some benefit for his plea of guilty. 

9.  But, neither policy nor justice require that a 1/3 discount for a plea should be given from the maximum of 7 years regardless of the proper starting point.  In cases where the appropriate sentence to be imposed after discount is 7 years or more, a meaningful discount from 7 years should be given in order to give some benefit for the plea.  The same applies if the appropriate sentence is so near 7 years that the discount is not meaningful.  As to what is meaningful in the particular circumstances, this must be left to the sentencer, but rarely would a reduction of less than 1 year be so considered.

Concurrent or consecutive sentences

16.In Attorney General v Cheung Pit-yiu CAAR 11/1988, Cons VP stated, at para. 6, as follows:

This Court has more than once had cause to restate the general principle that concurrent sentences are only appropriate for offences that can properly be said to have been committed in the course of a single transaction. That can hardly be said of offences involving the possession of drugs, as the judge below correctly believed, on occasions which occurred in separate months. We agree therefore with the submission of Mr. Cross, who now appears for the Attorney General, that the concurrent sentences in fact passed below would he wrong in principle, unless of course, the principle of overall totality required that in the circumstances no further punishment should be imposed.  (my emphasis)

Totality

17.Cons VP’s observations in Cheung Pit-yiu (above) takes us to the principle of totality.  In R v McKechan [2004] EWCA Crim 212, David Clark J said that totality was:

[A] principle that consecutive sentencing for multiple offences must not be used so as to produce a total sentence which is excessive for the overall offending. 

18.In HKSAR v Zhen Futing Cr App 509/2003, the applicant was charged with two offences of possession of firearms without a licence, two of possession of offensive weapons, and one of resisting a police officer in the due execution of his duty.  Stock JA said, at para. 18, that:

Judges must always sentence accurately for each particular offence and having done so, only then address the question of totality.

The sentence I pass

1^st charge: Trafficking

19.Despite the reporting social worker’s observations and plea for leniency, this is indeed a very serious case.  It is trite to mention the harm caused to others by trafficking in drugs.  There is a marked outcry for deterrence compared with the rehabilitation of the Defendant in the present case. 

20.The quantity of 116.81 grammes of ketamine falls within the range of 6 to 9 years’ imprisonment.  Based on the guidelines in Hii Siew Cheng (above), I should take 7 years as the starting point.  Coupled with the commission of the present offence whilst on bail in DC 1036/08, which was an aggravating factor as stated in Yuen Gang-shing (above), I take 7 years and 6 months as the starting point. 

23.According to Li chi-ko (above), the Defendant’s age, then 19 years old, was not of extreme youth hence any mitigating factor.  I reduce the sentence by one-third because of the plea of guilty.  There are no other mitigating factors.   The sentence for the 1^st charge is 5 years.

2^nd, 3^rd, and 4^th charges

24.As each police officer suffered only minor injuries, I take 3 months’ imprisonment as the starting point.  I reduce it by one-third because of the plea of guilty.  The sentence for each of the 2^nd, 3^rd, and 4^th charges is 2 months.  

Consecutive sentences have to be imposed

24.As the facts pertaining to each charge were separate and distinct, all sentences should be consecutive, subject to totality. 

Totality

25.In the precinct of the present case, given the sentence of 5 years for the 1^st charge, I do not think it serves any practical purpose to impose any further length.  Therefore I order the sentences in the 2^nd, 3^rd, and 4^th charges to run concurrently with the sentence in the 1^st charge.  In terms of the overall totality for the present case and DC 1036/08, I order 2 ½ years of the present sentence to be consecutive to DC 1036/08, and the remaining part to be concurrent with DC 1036/08.