HKSAR v. YAU CHI PANG AND OTHERS

DCCC 426/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.426 OF 2013

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Reasons for Sentence

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1. D1 pleaded guilty to charges 2, 8, 11 (joint charge with D3 and D4) and 12, which are respectively Claiming to be a member of a triad society, Trafficking in 0.88g of ketamine, Trafficking in 9.59g of ketamine and trafficking in 9.99g of ketamine.

2. D2 pleaded guilty to charges 9, 10 and 13, which are respectively Claiming to be a member of a triad society, Trafficking in 10.54g of ketamine and Possession of 9.22g of ketamine.

3. D3 pleaded guilty to charges 1 and 11 (joint charge with D1 and D4), which are respectively Claiming to be a member of  a triad society and Trafficking in 9.59g of ketamine.

4. D4 pleaded guilty to charges 3, 6, 7, 11 (joint charge with D1 and D3), which are respectively Claiming to be a member of a triad society, Trafficking in 0.15g of cocaine, Inciting another to traffic in ketamine and Trafficking in 9.59g of ketamine.

5. Charges 1 and 4 against D1; charge 8 against D2; charge 5 against D3 and charge 12 against D4 were ordered to be kept on file and not to be proceeded with without the leave of court.

Summary of Facts

6. Police conducted an undercover operation between 21^st May and 4^th November 2012. PW1 officer PC12701 was sent to the Yuen Long area with the nickname of Ah Hung to collect evidence.

Charge 1: D3

7. At around 00:30 on 8^th July, PW1 made the acquaintance of D3 and another male. While the three of them were at an eatery later that night, the male told PW1 to just say he knew “大圈鵬” (big circle Pang) should someone messed with him. The male explained to PW1 that ‘big circle’ meant the triad society “14K”. The male also said he himself was a full time member of a triad society and that D3 “followed” him. D3 nodded and said “that’s right”. By following, the male meant that D3 had joined and pledged his allegiance to the triad society.

Charge 2: D1

8. At around 00:55am on 18^th July, while PW1, D1 and D3 were at an eatery in Yuen Long, D1 said to PW1 that he joined the triad society when he was 12 and had been a member for 8 years, he had over 100 people “following” him. D1 also told PW1 that he had fought with one “Ah Yick” when they shared the same “亞公” (Ah Gong), but D1 was now “following KK”. By Ah Gong, D1 meant his protector in the society.

Charge 3: D4

9. At around 00:45am on 22^nd July, when PW1, D4 and another male were eating at the same eatery, D4 told PW1 that he and the other male were both “14 大圈” (14 Big Circle). D4 said he ‘followed’ “Sai Cool”, who was the buddy of the other male. D4 also said that D3 was ‘following’ the other male.

Charge 6: D4

10. At around 3:02pm on 13^th August, in a phone conversation with PW1, D4 asked PW1 if he wanted some ‘可樂’ (nickname of the dangerous drug cocaine). Later that day, D4 met PW1 at a video game arcade and D4 asked PW1 if his friends would like some cocaine and said that he can supply them with some good quality drug. PW1 replied in the affirmative.

11. The 2 of them went to Long Ping Station at around 8:15pm where PW1 paid $400 to D4 to buy one packet of white powder. This was later handed over to PW1’s controlling officer inside the washroom at the station. Government Chemist later examined and confirmed the powder contained 0.15 gramme of cocaine, with a then street value of $215.

Charge 7: D4

12. At around 9:35pm on 15^th August, PW1 and D4 left the above video game arcade together and went to a park. There they talked and in their conversation D4 asked if PW1 was interested in cooperating with him in selling ketamine. He and PW1 will share the sale price of the drugs as profits, PW1 will be responsible for looking for customers and D4 will be responsible for delivery. PW1 said he had to think about it.

Charge 8: D1

13. At around 6:05pm on 26^th August, PW1 met D1 and another male at the above video game arcade. The male asked PW1 if he needed ketamine and told him that the price of 1 packet was $100. PW1 replied that he wanted 2 packets. The male and PW1 then walked to D1 and the male told D1 that PW1 wanted 2 packets. D1 said to the male that there was no problem, to go to the male’s place to get for him and to collect $200.

14. PW1 left with that male together and went to room 1711 of Long Ping Estate, Ngan Ping House, arriving at around 7:20pm. The male entered the unit for a short time and then came out and handed over 2 packets to PW1. PW1 took over the 2 packets and paid $200 to the male. PW1 later handed over the 2 packets together with their contents to his controlling officer at the washroom at Long Ping Station. Government Chemist later confirmed their contents as powder with 0.88 gramme of ketamine with a then street value of $168.

Charge 9: D2

15. At around 1:45pm on 3^rd September, PW1 ran into D2 whilst inside the above mentioned video game arcade. D2 told PW1 that his “big brother” was a certain person, and that the person was having an argument with members of the triad ‘Shing Wo’, and that just a few days ago there was a fight with them. D2 told PW1 that when D2 was being asked whom he followed, he would say “14 dice boy Ah Pang”, that revenge was imminent, and so everyone was very careful when moving around.

Charge 10: D2

16. At around 7:10pm on 16^th September, PW1 called D2 who told PW1 that D2 had some ‘香水’ (‘perfume’, nickname for ketamine) that PW1 can go to his home to get. PW1 asked him for the price and D2 answered that he had to ask someone. PW1 therefore called that other person but no one answered. D2 told PW1 that he could go to his place to get the stuff first. 

17. Later on the same day, PW1 called D2 when he was outside Ngan Ping House and D2 met up with him to go to 18^th floor together. While PW1 waited in the lift lobby, D2 quickly entered an apartment and came back with one packet which he handed over to PW1, asking for $800. PW1 paid D2 the money. The packet was later handed over to PW1’s controlling officer. Government Chemist later confirmed the packet contained powder with 10.54 grammes of ketamine narcotic content, with a street value of $1,722.

Charge 11: D1, D3, D4

18. At around 6:15pm on 22^nd September, during a phone conversation with PW1, D1 told him that if he wanted ‘香水’ PW1 could call him. PW1 did call D1 later on in the day. D1 said he will go get the goods together with PW1. They met up later and took a taxi to where D4 lived.

19. PW1 and D1 waited in the taxi which was stopped outside a public toilet. At around 7:22pm, D3 and D4 approached the taxi. D4 opened the taxi door and handed over one packet to PW1 saying that it was half an ounce of ‘perfume’. D3 and D4 then left. PW1 paid $700 to D1. The packet was later handed over to PW1’s controlling officer the same night. Government Chemist confirmed the packet had 13.67 grammes of powder with a narcotic content of 9.59 grammes of ketamine with a then street value of $1,790.

Charge 12: D1

20. At around 6:05pm on 4^th October, PW1 met a male inside the video game arcade. The male said he had ‘perfume’ and could sell to PW1 for $700 per half an ounce. PW1 said he may need some later on. The male said he could arrange for that and told PW1 to go to Shui Bin Wai to collect and that he will give PW1 a call at around 8pm.

21. Later, PW1 received a call from D1, saying that the male had told D1 that PW1 wanted some ‘perfume’. D1 and PW1 met up at the video game arcade later that night and they went to Yuen Long Shui Bin Wai together. D1 told PW1 to wait at the staircase and left for about 5 minutes. D1 returned and handed over a packet to PW1 who then gave $700 to D1. The packet was later handed over by PW1 to his controlling officer at Long Ping Station. Government Chemist confirmed the packet to contain 13.62 gramme of powder with narcotic content of 9.99 grammes of ketamine with a then street value of $1,593.

22. The operation went overt on 4^th November when the 4 defendants were arrested.

Charge 13: D2

23. Subsequent to D2’s arrest, Police officers searched his place of residence at Ngan Ping House Room 1711 and found a packet with white powder inside. Government Chemist later confirmed the packet to contain 13.54 grammes of powder with narcotic content of 9.22 grammes of ketamine. Under caution, D2 said the drugs belonged to him and were for his own consumption, and that his family members knew nothing about it.

Previous convictions

24. D1 has 1 previous conviction for possession of dangerous drugs when he was sentenced to 12 months’ probation. He was found to have been in breach of that order resulting in an extension of the order to 18 months, ending on 30^th November 2011.

25. D2 has 1 previous conviction for Dropping or allowing object to fall from height in December 2012 when he was fined $1,000.

26. D3 is of clear record.

27. D4 was convicted on the same day on 12^th September 2012 for Conspiracy to theft and misleading a Police officer by giving false information. He was sentenced concurrently to 12 months’ probation for both charges. D4 committed charge 11 on 22^nd September 2012, just 10 days after he was sentenced.

Sentencing Cases

Trafficking in Ketamine

28. The sentencing tariff for trafficking in ketamine is as set out in the case of Secretary for Justice v Hii Siew Cheng (許守城) [2009] 1 HKLRD 1, CAAR7/2006. For trafficking of up to 1 gramme of narcotics, sentence is within the sentencer’s discretion. For trafficking in quantity of between 1 to 10 grammes, the sentence is between 2 to 4 years’ imprisonment. For quantity of between 10 to 50 grammes, the sentence is between 4 to 6 years’ imprisonment.

Trafficking in Cocaine

29. The sentencing tariff for trafficking in cocaine is the same as for heroin as first set out in the case of R v Lau Tak Ming [1990] 2 HKLR 370. For trafficking in quantity of up to 10 grammes, sentence is between 2 to 5 years’ imprisonment.

Possession of dangerous drugs

30. There are no sentencing tariff for simple possession of dangerous drugs but the usual sentence is that of between 12 to 18 months’ imprisonment, depending on the quantity of drugs involved and circumstances of the case. It is Mr. Chong, counsel for D2’s submission that although the quantity of ketamine in D2’s possession in charge 13 is not small at 9.99 gramme, this is his first conviction of this kind and the court should adopt the lower end of the usual scale.

Claiming to be Member Of a Triad Society

31. Maximum sentence for Claiming to be a member of a triad society is a fine of $100,000 and imprisonment for 3 years for a first conviction. The defendants are all first offender in relation to this charge.

32. I was referred to the case of HKSAR v Choy Ka Fai and others, CACC 195/2009. There the Court of Appeal made reference to the judgment by Deputy High Court Judge Line (as he then was) in HKSAR v Lau Chi-hung, HCMA 1079/2004 (22 April 2005, unreported).  Similar to our case, that case involved an undercover operation by the police.  The appellant of that case said to the undercover officer:

“From now on, pay more visits here to have fun. We are Wo Hop To, just like a family.”

33. The Court of Appeal referred to what Judge Line said in that case:

“… All I need say is that the sentence, to me, is entirely appropriate. It was a gentle claim made in a social context, but that is reflected in the gentle sentence of 3 months which is at the bottom end of the bracket for claiming to be a member of a triad society. Triad societies are a continuing menace to our society and claiming to be a member is bound to attract a custodial sentence in circumstances like this.”

34. It is the common position of all 4 defendants that they committed their claiming offences in similar circumstances and therefore should be given similar sentences to that of Lau Chi-hung.

Incitement to traffic in a dangerous drug

35. Mr. Boey did not refer me to any cases on this charge that D4 alone faced. This offence is punishable under s.101I of the Criminal Procedure Ordinance, Cap.221, as such, the maximum sentence is the same as that of a trafficking charge, which is a fine of $5,000,000 and imprisonment for life.

Sentence

The Claiming to be a member of a triad society charges (charges 1(D3), 2(D1), 3(D4), 9(D2))

36. I agree with the submissions of Mr. Iu in relation to the application of the cases of HKSAR v Choy Ka Fai and others and HKSAR v Lau Chi-hung. The defendants were just relating their personal situation and experience about their involvement with the triad society. There were no threats directed at anyone. They were in fact ‘gentle claims made in a social context’.

37. For each of these charges in relation to each defendant, I adopt a starting point of 3 months’ imprisonment, reducing it to 2 months’ imprisonment upon their plea of guilty.

D2’s possession of dangerous drugs charge (charge 13)

38. I accept Mr. Chong’s submission and recognize that the usual range of sentence for simple possession of dangerous drugs for self-consumption is that of between 12 to 18 months’ imprisonment. This is D2’s first conviction relating to dangerous drugs. The amount of ketamine involved was however not a very small amount. For that quantity, I will adopt a starting point of 15 months’ imprisonment, discounted to 10 months’ imprisonment upon D2’s guilty plea.

The Trafficking Charges

Trafficking in 0.15g of Cocaine (charge 6, D4)

39. This is D4’s first conviction for trafficking (not counting his other charges in the present case). Although D4 is now 17 and was 16 at the time of the commission of this offence, he does not fall into the extreme youth category. Furthermore, s.109A of the Criminal Procedure Ordinance, Cap.221 does not apply because trafficking in dangerous drugs is an excepted offence and imprisonment need not be imposed only as a last resort. In any event, a background report was prepared on D4 but there is nothing inside that I find can allow me to depart from the sentencing tariffs. In fact, the same can be said of all the other defendants in relation to their own trafficking charges.

40. For this charge, I will adopt a starting point of 24 months’ imprisonment, discounting it to 16 months’ imprisonment upon D4’s plea of guilty.

Trafficking in Ketamine (charges 8, 10, 11, 12)

41. Counsel for the defendants submitted that Hii Siew Cheng’s tariffs anticipate only similar situations of ketamine being sold to young people in discos and so should not be strictly adhered to in our present case where the defendants were just selling the drugs to a friend in normal social occasions. It was also pointed out that the price that the drugs were sold to PW1 were lower than the then street price of the drugs, indicating that the defendants were just sharing their drugs with a friend and not trafficking in the drugs in a commercial sense.

42. I disagree with the suggestion that the tariffs do not apply in our case and I disagree that the defendants were just sharing the drugs with a friend. As seen in the summary of facts, it is not the case that PW1 so happened to be present when the defendants were taking drugs and decided to buy some from them. In all 4 of the trafficking in ketamine charges, after PW1 had indicated that he wanted to buy some drugs, he was not immediately given the drugs but was told to go somewhere to pick up the drugs. I find that the facts indicated some organization in the selling of the ketamine.

43. I do not see how the tariffs in Hii Siew Cheng should not be applied fully to our present case.

Charge 8: D1

44. For the 0.88g of ketamine that D1 trafficked in, I will adopt a starting point of 18 months’ imprisonment, discounted to that of 12 months’ imprisonment upon the defendant’s guilty plea.

Charge 10: D2

45. For the 10.54g of ketamine that D2 trafficked in, I will adopt a starting point of 48 months’ imprisonment, discounted to that of 32 months’ imprisonment upon the defendant’s guilty plea.

Charge 11: D1, D3, D4

46. Here the 3 defendants jointly trafficked in 9.59g of ketamine. I find them all equally culpable. For each of the defendants, I will adopt a starting point of 45 months’ imprisonment, discounted to that of 30 months’ imprisonment upon their guilty plea.

Charge 12: D1

47. D1 trafficked in 9.99g of ketamine. I will adopt a starting point of 48 months’ imprisonment, discounted to that of 32 months’ imprisonment upon his plea of guilty.

Incitement to traffic in a dangerous drug, Charge 7: D4

48. There was no specific amount of ketamine that D4 was asking PW1 to traffic in together with him. There is no evidence of any follow up action on D4’s part after he first mentioned the matter to PW1. The incitement arose when PW1 and D4 were having a chat in the park after playing some video games together. Given the position that D4 was in, that is to say, he was obviously capable of finding some ketamine to sell, there is seriousness in his commission of the offence. Not only was D4 himself trafficking in dangerous drugs, he was inciting others to join him. This must be deterred.

49. For this offence, I will adopt a starting point of 24 months’ imprisonment, discounting it to 16 months’ imprisonment upon D4’s guilty plea.

Totality

50. Mr. Iu submitted that the ultimate sentence for each of the defendants should not be so severe as to deliver a crushing blow. They are after all still relatively young and of reasonably good record.

51. Furthermore, letters written by the defendants themselves as well as their parents and social workers all have positive things to say about them. Their background reports indicate that they have made unwise associations in the past, leading them onto the road of wrongdoings. It is submitted that the defendants should be given a chance to rehabilitate, to renew themselves and to pick up the pieces and move forward.

52. I agree with their submissions but with reservations. Because the court must see the matter as it is. That is to say, over a period of about 3 months, the defendants had chosen to commit the various offences. They had chosen to be associated with triad members and dealt in drugs. It is exactly this kind of behaviour that the court must denounce by including an element of deterrence in the ultimate sentence. This will serve as a stern warning to those who are tempted to undertake the same path as the defendants that they will have to bear the full consequences of their action and that they must be alert and not be exploited by those who try to fool them into thinking that the courts will be lenient to them because of their age and lack of experience.

53. With that in mind, I have stood back and decided on the following sentences.

D1

54. D1 pleaded guilty to charges 2, 8, 11 and 12, for which he is sentenced to 2, 12, 30 and 32 months’ imprisonment respectively. I order that 1 month of charge 2, 2 months of charge 8 and 5 months of charge 11 to be served consecutively to the sentence in charge 12, the balance to be served concurrently. Total sentence is therefore, 1+2+5+32= 40 months’ imprisonment.

D2

55. D2 pleaded guilty to charges 9, 10 and 13, for which he is sentenced to 2, 32 and 8 months’ imprisonment respectively. I order 1 month of charge 9 and 3 months of charge 13 to be served consecutively to the sentence in charge 10, the balance to be served concurrently. Total sentence is therefore, 1+32+3= 36 months’ imprisonment.

D3

56. D3 pleaded guilty to charges 1 and 11, for which he is sentenced to 2 and 30 months’ imprisonment respectively. I order that 1 month of charge 1 be served consecutively to the sentence in charge 11. Total sentence is therefore 31 months’ imprisonment.

D4

57. D4 pleaded guilty to charges 3, 6, 7, 11, for which he is sentenced to 2, 16, 16 and 30 months’ imprisonment respectively. I order that 1 month of charge 3, 4 months of charge 6, 5 months of charge 7 be served consecutively to the sentence in charge 11. Total sentence is therefore 1+4+5+30 = 40 months’ imprisonment.

58. D4’s current probation order be discharged.