HKSAR v. LO KWUN FUNG AND ANOTHER

DCCC 753/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 753 OF 2016

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Reasons for Sentence

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1.  There were four defendants in the charge sheet. Upon plea bargaining, the prosecution withdrew the charge against D1 Cheung, D2 Chan and D3 in relation to the 1st charge. D3 pleaded guilty to Charge 2, and D4 to Charge 1.

Brief Facts

2.  At about 3 am on 27 April 2016, PW1 Chan, parked his car on Whitty Street, Western, and went to the ATM of a bank’s branch at Des Voeux Road West.  He noticed another private car with the registration mark LX7177 parked behind his car with four males inside.  After withdrawing cash from the ATM, PW1 noticed that the car LX7177 had moved and was stopped in front of his car instead.

3.  A male sitting at the right rear passenger seat asked PW1 if he was the one who wanted to pick up something for $3,000.  PW1 denied and heard the driver of the car saying, “Shut up.  We have the wrong person.”  He then drove the car away.

4.  PW1 made a report to the police and drove his own car to follow LX7177.  PW1 kept on reporting to the police about the movement of the said car.

5.  The police were able to intercept the car LX7177 shortly in Sai Ying Pun area.  D1 Cheung was the driver and D2 was sitting in the front passenger seat.  D3 was found sitting at the right rear passenger seat while D4 was sitting on the left.

6.  Upon the car search, the police found the following items:

(1) one plastic bag containing 10.5 grammes of a crystalline solid containing 10.2 grammes of methamphetamine hydrochloride (P1) on the floor of the left rear passenger seat where D4 was sitting;

(2) one paper packet containing 0.26 gramme of a powder containing 0.15 gramme of ketamine (P2) on the middle rear passenger seat between D3 and D4;

(3) one black-coloured bag containing one imitation firearm, an air gun (P4), which was found on the right rear passenger seat where D3 was sitting.

7.  Apart from that, the police also found on D3 one grey‑coloured bag containing four CO2 gas capsules and 108 pellets (P5), and one iPhone (P37).  A Smartphone was found on D4.

8.  Upon caution at the scene, D3 admitted that he bought the air gun (P4) one month ago in Mong Kok.

9.  Forensic Firearms examiner examined the air gun and found that the slide was dismantled from the main body when it was seized, and noted that the air gun was not in working order due to the failure of the propelling system.  As such, test shooting for derivation of muzzle energy could not be conducted.

10.  D3, in the subsequent video-recorded interview, admitted, inter alia, the following:

(1) the air gun (P4) belonged to him. He had bought it for $1,900 for fun, but had not used it because it was not working;

(2) he had with him three to four CO2 gas capsules and 108 pellets (P5), which were fit for the air gun;

(3) he got to the car at about 10 pm on 26 April in Ngau Tau Kok area;

(4) D4, D1 Cheung and D2 Chan are his friends;

(5) he believed the drugs belonged to D4, as he had seen D4 taking drugs.

11.  In the video-recorded interview, D4 admitted that:

(1) the drugs, P1 and P2, belonged to him;

(2) he had bought the drugs, ‘Ice’ and ‘K powder’, in Kwun Tong from a man called ‘Ah Wai’ for about $1,000 on the night of 26 April 2016;

(3) D4 bought them for self-consumption, and claimed that the drugs would be sufficient for his consumption for one month;

(4) he put the drugs into the front pocket of his trousers;

(5) D3 invited him to have a car ride, and he met D3 in Choi Hung and boarded the car;

(6) he sat at the left rear passenger seat, while D3 was on the right;

(7) D4 did not know Cheung (D1) and Chan (D2), who were sitting in the front;

(8) when the police intercepted the car, D4 took the drugs out and dropped them on the floor of the car.

12.  The Government Chemist confirmed that the plastic bag contained 10.5 grammes of a crystalline solid containing 10.2 grammes of methamphetamine hydrochloride (P1) and the other paper bag contained 0.26 gramme of a powder containing 0.15 gramme of ketamine.  The police estimated that the street value of P1 was about $3,661, and the value of P2 was $35‑odd.

Mitigation

13.  Counsel for D3 and D4 has submitted a mitigation folder of several authorities relating to Charge 1 and 2.  It was submitted that the imitation air gun was not in working order, and maintained that D3 got it for fun.  However, there was no instruction from D3 as to why he had 108 pellets at the time.  The authorities so submitted suggest that the sentence range can be from 10 months to 18 months.

14.  As regards D4, counsel withdrew one of the mitigating factors in that D4 would not say some of the ‘Ice’ so seized was for his own consumption.  Instead, the small quantity of ketamine was for D4’s own consumption.  D4 is currently serving his sentence in DATC, and counsel has no submission on this point.

Sentence

15.  D3 is aged 32 and single.  He had worked as a cleaner and was unemployed at the time of arrest.  He was last discharged from prison in June 2015.  D3 had 18 previous convictions, some of them related to dangerous drugs.  D3 had been sent to DATC on previous occasions.  I would say D3 can be considered “lucky” in that the Prosecution withdrew the drugs charge against him.  D3 was the one who asked PW1 if the latter “wanted to pick up something for $3,000” (see the amended Summary of Facts at paragraph 2 and 4). The drugs were found in the rear passenger seat area.  The time of interception was at about 3 am in the morning.  D3 was in possession of an imitation firearm which is made of metal and is quite heavy.  (The real exhibit was inspected in court, and see also photos 70 and 71 of the album.)

16.  Taking all the circumstances into account, I have no doubt that inference can be drawn that D3 was in possession of the imitation firearm in the circumstances likely to lead to either the commission of an offence or for a purpose dangerous to public peace (see section 20(3) of Cap 238).

17.  I have considered D3’s mitigation and the authorities so submitted and, taking into account that the air gun is not in working order, I would adopt a starting point of 12 months.  D3’s guilty plea would entitle him to a one-third discount.  Accordingly, I sentence D3 to 8 months’ imprisonment.

18.  As regards D4, who now ‘shoulders’ single-handedly the culpability of the main charge, I would disregard the small amount of ketamine for the present sentencing purpose.  D4 is aged 30 and was born in China.  He was educated up to Form 3 level in Hong Kong.  D4 had worked as a casual kitchen worker and was unemployed at the time of arrest.  He had four previous convictions and was sentenced to DATC in May this year.  D4 is still serving his sentence in DATC.

19.  The sentencing guideline for trafficking in ‘Ice’ is settled.  For trafficking in ‘Ice’ of the quantity between 10 grammes to 70 grammes, it will attract a starting point of 7 to 10 years.  In the present case, 10.2 grammes of ‘Ice’ was involved, and I would adopt a starting point of 7 years.  Given his guilty plea, I would sentence D4 to 56 months.  With the imprisonment term, it will effectively cause the previous DATC order to cease to have effect.