HKSAR v. Ip Tsz Yau

DCCC 70/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 70 OF 2015

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Reasons for Sentence
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1.The defendant was convicted after trial of one count of assaulting a Police officer in the due execution of his duty (charge 1), contrary to section 63 of the Police Force Ordinance, Cap.232; one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134, and one count of possession of dangerous drugs, contrary to section 8(1)(a) of the same Ordinance.

2.Particulars of the drug charges are that he on 9^th November 2014 unlawfully trafficked in 154g of a powder which contained narcotic contents of 113.1g of ketamine (charge 2); and 11.7g of a powder containing 8.2g of ketamine (charge 3), firstly outside room 409 of Shui Moon House, Tin Shui (2) Estate and then inside Room 409. The defendant was found not guilty of trafficking in the drugs in charge 3 but guilty of their possession.

Summary of facts

3.Room 409 is the defendant’s residence. On the evening of 9^th November 2014, Police officers conducted an anti-narcotic operation outside the premises. The defendant came out of the room at around 7:52pm and the Police officers immediately revealed their Police identity. The defendant immediately tried to return into the room but was intercepted by the Police officers.

4.One of the Police officers demanded to the defendant’s proof of identity, whereupon the defendant suddenly pushed PW3 in the chest, causing him to hit against the wall (charge 1). In the subsequent medical examination, the officer was found to have sustained abrasions on his left hand.

5.The defendant was eventually subdued. Upon search, a plastic bag was found inside the defendant’s underpants. Inside the bag were a total of 12 plastic bags each containing some suspected dangerous drugs. The defendant said he had nothing to say under caution. Upon arrest, 5 keys and a mobile phone were found on the defendant.

6.In execution of a search warrant, the Police officers entered and searched room 409. There was no one inside the room. The defendant pointed out his bedroom to the Police officers. Upon search of that room, a plastic bag containing some powder was found on a computer desk (charge 3). Cash of $21,000 and 2 mobile phones were found on the same desk.

7.Under caution, the defendant claimed that the ketamine was for his self-consumption and the cash belonged to him.

8.Government Chemist examined the suspected drugs found on the defendant as well as from the defendant’s desk and confirmed that the 12 plastic bags found on the defendant contained a total of 154g of powder which contained 113.1g of ketamine; whereas the 11.7g of powder found on the defendant’s desk contained 8.2g of ketamine.

Previous convictions

9.The defendant has a total of 20 criminal convictions from 12 court appearances. 6 of those convictions were for possession of dangerous drugs. The defendant had been convicted of offences including assault occasioning actual bodily harm, criminal damage, taking conveyance without authority (2005 and 2011) and engaging in bookmaking. His latest convictions were on 10 October 2011 for taking conveyance without authority, using a motor vehicle on a road against third party risks, driving a motor vehicle with alcohol concentration above the prescribed limit and driving without a licence. He was also in breach of a suspended sentence which was imposed for the engaging in bookmaking conviction mentioned above.

Mitigation

10.Mr. Davies confirmed the correctness of the defendant’s antecedent statement and was very brief in mitigation.

11.Mr. Davies accepts that for the quantity of ketamine involved in charge 2, an application of the guidelines would lead to a sentence of between 6 to 7 years’ imprisonment. Mr. Davies submits that the sentence for the assault should be made concurrent to the sentence in charge 2, and that the sentence in charge 3 should in any event pale into insignificance when compared to the sentence in charge 2.

Sentencing guidelines

12.The sentencing tariff for trafficking in ketamine was set down in the case of Secretary for Justice v Hii Siew Cheng (許守城) [2009] 1 HKLRD 1, CAAR7/2006. The tariff for sentence after trial for traffickers in ketamine of 50 to 300 grammes is that of 6 to 9 years’ imprisonment.

Sentence

Charge 1

13.The maximum sentence under section 63 of Cap.232 is a fine of $5000 and imprisonment for 6 months.

14.The defendant’s assault was in the form of one push, which did not cause any serious injuries. The defendant was trying to escape when being apprehended. I find that the assault is at the lower end of the spectrum of seriousness.

15.I will adopt a starting point of 2 months’ imprisonment. Although the defendant has a lengthy conviction record, there is only one involving violence and that was back in 1997 when he was 14 years old. I do not find that as an aggravating factor.

16.On the other hand, I also find that there are no mitigating factors.

17.The defendant is sentenced to 2 months’ imprisonment on charge 1.

Charge 2

18.The maximum sentence for trafficking in dangerous drugs is that of life imprisonment.

19.The defendant committed the offence alone. This is the defendant’s first trafficking in dangerous drugs conviction. As Mr. Davies correctly pointed out, the circumstances of the trafficking were simple and there are no aggravating factors as to its commission.

20.For 113.1g of ketamine, I apply the tariff sentence and adopt a starting point of 81 months’ imprisonment.

21.I also find that there are no mitigating factors to warrant a discount to the sentence.

22.The defendant is sentenced to 81 months’ imprisonment on charge 2.

Charge 3

23.The maximum sentence for simple possession of dangerous drugs under section 8(1)(a) and (2) of the Dangerous Drugs Ordinance is that of a fine of $1,000,000 and imprisonment for 7 years.

24.The amount of ketamine involved in this charge is 8.2g, which is not a large quantity. The drug was found inside the defendant’s home.

25.I will adopt a starting point of 12 months’ imprisonment.

26.This is the defendant’s 7^th conviction for possession of dangerous drugs. I find this an aggravating factor. For this, I will increase his sentence by 2 months.

27.The defendant is therefore sentenced to 14 months’ imprisonment on charge 3.

Consecutive or concurrent

28.I find that the commission of charge 2, the trafficking charge, does not mean that the defendant also had to commit charge 1, the assaulting charge. I find that in principle the sentences for these two charges should run consecutively and I do so order. The total sentence for charge 1 and 2 is that of 83 months’ imprisonment.

Totality

29.In relation to charge 3, bearing in mind the principle of totality and the sentencing jurisdiction of the District Court, I will order 1 month of the sentence in charge 3 to be served consecutively to the sentence in charge 1 and 2, the balance concurrently.

30.The final sentence for the 3 charges is therefore (81+2+1= 84) 7 years’ imprisonment.