HKSAR v. FUNG NANG KEI

DCCC862/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 862 OF 2008

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Reasons for Sentence

1.  Defendant, you have pleaded guilty to the 1st charge of possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance.

2.  You admitted that on the 28th day of July 2008, in a private car parked outside Brilliant Garden, Castle Peak Road, Tuen Mun, you had in your possession a dangerous drug with two other co-accused defendants, 10.11 grammes of a powder containing 8.15 grammes of ketamine.

3.  In respect of the 2nd charge of attempted possession of arms and ammunition without a licence, contrary to section 13(1) and (2) of the Firearms and Ammunition Ordinance and section 159G of the Crimes Ordinance, you pleaded not guilty.  I found you guilty, after trial, of attempting to have in your possession a quantity of arms and ammunition, namely, one revolver and six bullets, without a licence, on the 28th day of July 2008, at Room 120A of Tuen Mun Police Station, Tuen Mun.  I am therefore here to sentence you on two separate charges.

4.  In respect of the possession of dangerous drug charge, you were charged with two co-accused.  They have already pleaded guilty and were sentenced to 120 hours of Community Service Order before another judge.

5.  On 28 July 2008 police officers had set up a road block outside Brilliant Garden in Castle Peak Road to carry out routine checking of vehicles.  At about 10.52 pm, an officer intercepted a vehicle in which you were a passenger on board and the other two accused were, respectively, a driver and also a passenger.

6.  As the officer found all three of you acting furtively, he directed you to get off the vehicle for a body search.  Nothing suspicious was found.  Another officer then performed a search on the vehicle and found the dangerous drugs hidden at a space between the handbrake and the front passenger seat of the vehicle.  At 11.10 pm, the officer arrested you for possession of dangerous drugs and cautioned you.  Under caution, you said that you had gathered money with the other two friends - that is, the two co-accused - to buy the “K Chai” for your own consumption.

7.  The 2nd charge concerns an offence that happened when you were brought back to the Tuen Mun Police Station as a result of the possession of dangerous drugs in the 1st charge.  At about 11.34 pm, you three arrested persons were brought back to the Tuen Mun Police Station for further investigation.  You were brought inside a room inside the report room of Tuen Mun Police Station for inquiries and documentation.  There were you three in the report room, together with an officer doing the documentation and another officer standing guard.

8.  The officer doing the documentation in the trial was PW1, PC34628.  The two co-accused were sitting on chairs and you were standing up.  Whilst the officer, PW1, was doing some documentation at about 11.44, you suddenly dashed towards the right side of the officer and both of your hands grabbed the handle of his police revolver, which was in a holster around his waist.  You tried to pull it out from the holster.  The officer immediately held on to the revolver and pushed you away.  The other officer joined in to assist that officer and finally subdued you on the floor.

9.  After you were subdued on the floor you shouted, “Give me the gun.  I want to die.”  Another officer arrested you for attempted robbery and under caution you said, “Give me the gun.  I want to die.  Tell my mum for me I could not repay the credit card payment of $100,000-odd.”  No one was injured during the incident and no damage was caused to the revolver and the holster of PW1 or to any other property.  You took part in a video recorded interview on 29 July.  That interview was given voluntarily.  The police revolver was loaded at that time with six bullets.

10.  Much of the evidence in the trial of Charge 2 was admitted.  The only issue at that time before me was whether you had the specific intent.  It was argued by your counsel, Mr Simon Yip, that you did not have the specific intent at the time because you were under the influence of drugs.  Having heard all the evidence and having given my reasons for verdict, I found you did have the necessary intent to possess the firearms and the ammunition.

11.  Prior to sentencing you today, I had called for a probation officer’s report and a Community Service Order report.  I had indicated to you that this was no indication of what sentence I shall pass upon you, but that all sentencing options would be open to me.  Those reports are now before me.  Mr Yip, your counsel, has made mitigation on your behalf fully, and I have taken into account all that he has had to say.

12.  You are 23 years of age, single and have one previous conviction for assault occasioning actual bodily harm, for which you were sentenced to a Rehabilitation Centre.  That conviction is now regarded as spent.  You were sentenced when you were 19 years of age, some four years ago.  In the report itself, the probation officer states that it appears that you are not in need of probation supervision, as you had received disciplinary training before and you, having been a grown-up with a stable job previously and have sufficient awareness of the price of violating the law.  Mr Yip has said that probation is not recommended, not because of any bad character but because you had previously received disciplinary training; that you have learnt a hard lesson and that you are willing to turn anew.

13.  In respect of a Community Service Order, again, the probation officer recognises that you are willing to make reparation for your wrongdoings by performing unpaid service and showed regret for your involvement in the present offences.  However, considering your previous criminal record and your being convicted on this occasion of two offences, a Community Service Order is not recommended.  Should I consider to grant a lenient sentence on you, she recommends a Community Service Order of between 200 to 240 hours.

14.  I am informed by Mr Yip that principally the reason for you committing the 1st offence of possession of dangerous drugs was because of the anxiety and stress that you were facing as a result of your excessive spending habits and having to repay your debts.  You therefore took ketamine to relieve that stress.  However, that rebounded on you in that that caused the commission of the 2nd offence.

15.  All along, throughout the time you were released from the Rehabilitation Centre, Mr Yip submits that you have been gainfully employed, and even prior to you receiving rehabilitation at the Rehabilitation Centre you had had gainful employment.  You had been a printing worker at a boat factory just in December, and I am informed that you stopped working there in December as you were not sure what would be the result of these offences and you did not want to cause a problem to the factory.  However, I am informed that should you not be incarcerated your job will still be there waiting for you and you will be able to return to the factory to work if you have a chance to do so.

16.  No doubt both offences are serious, but more particularly the second offence of attempted possession of the arms and ammunitions.  That is reflected in that that is also an excepted offence.

17.  I found that the reason for you committing this offence was as a result of an emotional outburst that had overcome you suddenly and without reason in the report room.  Prior to that, upon your arrest up until that moment, you were co-operative with the police, were calm and coherent.  As I mentioned, suddenly, without reason, you lost control of yourself and out of an outburst of emotion you attempted to grab the officer’s revolver saying that you wanted to kill yourself.  Again, Mr Yip has boiled all of this down to the fact that the debt that you had in incurred was the sole and principal reason for all this stress and anxiety.  Mr Yip submits that although you pleaded not guilty to that 2nd charge, in fact all the facts were admitted in law and the only issue was the question of intent.

18.  This is not an easy case for which to sentence you.  Mr Yip has made very persuasive mitigation on your behalf and given the fact that you have learnt a good lesson and have shown remorse; that your family members support you; that you have employment still open to you; and that you have worked out a repayment plan, I am prepared to give you this last chance and grant you leniency and sentence you to a Community Service Order.

19.  It appears certain, which I accept, that from the contents of the report you do not have a bad personal character.  I am informed that for the offence of assault occasioning actual bodily harm, you were sentenced to a Rehabilitation Centre because that was a gang fight.  That was when you were a teenager.  I would like to now ask you, defendant, if you are willing to undertake the order for a Community Service Order.

DEFENDANT:  Yes.

20.  I sentence you, then, for both charges to 240 hours of community service.  Those sentences shall run concurrent to each other.  That is, of course, the maximum number of hours you can serve.