HKSAR v. Pei Yuk Kam

DCCC1378/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1378 OF 2009

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Reasons for Sentence

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1.Defendant, you were convicted after trial of doing an act preparatory to the manufacture of a dangerous drug, contrary to section 6(1)(b) and (2) of the Dangerous Drugs Ordinance, Cap.134; and to one of offence of resisting a police officer in the due execution of his duty, contrary to section 36(b) of the Offences Against the Person Ordinance, Cap.212.

2.I have dealt with the facts at length in my verdict delivered on 26 May last.  Suffice it to say in relation to the 1st charge, the dangerous drug to be manufactured, for which you did an preparatory, was “Ice.”  The evidence was supportive of the quantity being small and the methodology extremely crude, and as matters stood, without further ingredients, you could not have obtained the end result.

3.In relation to the 2nd charge, though this was intended to impede and prevent the detection of the 1st charge, a weapon was used.  There was no planning involved, and injury to the officer was not at the most serious. 

4.You admitted to four previous convictions, none of which were similar, and I notice the last was in 1988. 

5.I am obliged to Mr Liu for the prosecution for the most helpful provision of cases, the four authorities.  Those cases were HKSAR v Shum Koon LamCr App No. 73 of 2001, Attorney General v Woo Kwai Fong & Others Appeal for Review No. 12 of 1988, HKSAR v Kan Fong Fai Cr App No. 298 of 2008, and HKSAR v Wong Bing Kei(?) Cr App No. 485 of 2001.

6.The thrust of those cases together, as I understand it, provide that the sentencing approach for the 1st charge should be in line with manufacturing of dangerous drugs, and therefore the sentence imposed should be an immediate prison sentence of some length.  The level, the sophistication, the nature of the paraphernalia and the quantity of the dangerous drugs have some relevance.  Also, a one-man-band operation should be differentiated from a syndicate.

7.Mr Pun entered mitigation on your behalf in respect of the 1st charge but made no mention of the less serious 2nd charge.  On your behalf, he submitted to me the authority of HKSAR v Chan Sung WingCr App No. 52 of 2007.  That case involved a miniscule amount of dangerous drugs with a very technical manufacturing charge. With the greatest of respect, I could not see how it applied to the present case. 

8.Mr Pun also submitted I should pay little heed to the authorities provided by the prosecution as they should be distinguishable on their facts and their seriousness.  Whilst I fully accept that each case must be dealt with on its own particular facts, I do find that the four cases were helpful in establishing an approach.  He submitted that the present case was at the lowest end of the spectrum.  There was no evidence of you actually trafficking, and the operation was small.  On your behalf, he asked for leniency.

9.I turn now to the sentence.  Charge 1 is a very serious charge indeed.  However, I do accept that it was small-scale, unsophisticated and incapable of manufacturing “Ice” without the final ingredients.  Also, I accept that on the evidence and given my findings, the evidence points to the fact that you acted alone.  In other words, this is not the operation of a syndicate. 

10.Also of minor relevance but worthy of mention is the fact that such convictions as you have are of some age and of a totally different nature and therefore I am prepared to treat you as a person of hitherto clear record.  Nonetheless, any act done towards the sale or manufacture of goods is an evil act. 

11.Taking all the factors into account I have mentioned, you will go to prison for 4 and a half years.

12.I turn now to Charge 3.  That, in my opinion, is somewhat more serious than Charge 2 which was against D1.  It was more serious in that there was the impeding of the entry of the officers by the closing of the door, the interference with the potential exhibits in this case, and the fact that the officer was slightly worse injured than the officer in respect of Charge 2. 

13.On that case, you will be sentenced to 2 months’ imprisonment but as an act of mercy and applying the principle of totality, that will be concurrent with the 4 and a half years.

Appeal against conviction and sentence on 1st charge by D2 to Court of Appeal dismissed. Please refer to CACC213/2010 dated 9 March 2011