HKSAR v. PANG YU HO AND ANOTHER

DCCC818/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 818 OF 2008

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Reasons for Sentence

1.  The defendants faced two charges.  The first charge was a joint charge of trafficking in dangerous drugs.  The particulars allege that at a room in a building in Sham Shui Po, both defendants unlawfully trafficked in 174.15 grammes of ketamine and 3,793.22 grammes of cannabis in herbal form.

2.  The 1st defendant entered a plea of guilty to that charge and the 2nd defendant pleaded not guilty.  The prosecution applied for that charge in respect of the 2nd defendant to remain on the court file, not to be proceeded without the leave of the court, and the court acceded to the request.

3.  The second charge, which was laid against the 2nd defendant only, alleged that he wilfully obstructed a police officer in the execution of his duty.  The particulars of that offence are that on 15 May, at the premises where the trafficking took place, the defendant obstructed a police officer.

4.  The amended summary of facts discloses that on 15 May, a group of police officers mounted an anti-narcotics operation outside Room 3, Flat D, on the 10th Floor of Cheung Shing Building in Sham Shui Po.  The officers were in possession of a search warrant.  At 1529 hours the 1st defendant was seen opening the wooden door of the flat and the officers immediately ran to the 1st defendant, disclosed who they were and demanded entry to the house.  D1 shut the door and he was heard shouting to somebody inside the flat, “Guard the door.  There are police.”  The 2nd defendant guarded the door and was resisting the entry of the police at the door, whilst the 1st defendant was rushing towards the window holding a packet of substance.

5.  Within a couple of minutes the police had broken into the flat and they witnessed the 2nd defendant shouting to the 1st defendant, “Throw the stuff out of the window quick.”  One of the officers warned the 1st defendant not to throw the packet outside the window.  There was a struggle between the officer and the 1st defendant and eventually the 1st defendant was subdued.  The 2nd defendant had a fight with the second police officer at the doorway.  Both of them fell to the ground and finally the 2nd defendant was subdued and arrested.  The officer involved in the struggle with him sustained minor injuries.

6.  The drugs the subject of the charge were subsequently recovered.  Those drugs included what was subsequently found outside the flat by a third police officer who was keeping watch on the window of the flat and he saw a black and green rucksack thrown out of the flat and land on the motorway of Cheung Sha Wan Road.  The rucksack contained the cannabis the subject of the charge

7.  The 1st defendant immediately admitted his guilt in this matter and under interview he said he had bought 4,000 grammes of cannabis for $100,000 and 250 grammes of ketamine for $13,000.  Inside the flat were found re-sealable plastic bags and an electronic scale.  The defendant said that he would re-pack the drugs for re-sale, using the electronic scale and the pile of plastic bags.  He said he would sell the ketamine in 14-gramme packages for $1,000 and 28 grammes of cannabis for $2,000.  He would sell the drugs in pubs and discos.  He also admitted throwing the cannabis out of the window.

8.  Right from the outset the 2nd defendant denied that he was involved in drug trafficking.  He claimed that all the drugs were owned by the 1st defendant and he was simply visiting the 1st defendant to play video games.  He knew there was ketamine inside the flat, and fearing the police would arrest him also, he helped the 1st defendant to resist the entry of the police.

9.  Both of the defendants have records.  The 1st defendant has previous convictions for infringing copies of copyright works and for the possession of dangerous drugs.  In respect of the infringing copyright works, I note that that conviction was nine years ago in 2000, and he was sentenced to detention centre.  The other conviction was recorded in 2007.  For the possession of dangerous drugs he was fined $1,500.

10.  The 2nd defendant has four previous convictions, the last conviction being in 2007, for which he was sentenced to 3 months’ imprisonment suspended for three years and fined $6,000 for possession of dangerous drugs.  His counsel accepts that the plea today by the defendant is a breach of that suspended prison sentence and no factors have been urged upon me to suggest that I should not impose that sentence.  The 2nd defendant has two earlier convictions for possession of dangerous drugs in 2007 and 2004.

11.  In mitigation, I was told that the 1st defendant is 24 years of age.  He was born in Hong Kong and lives on the Kung Fuk Estate in Tai Po.  He was educated to middle level standard in a Chinese Secondary School.  He has a wife and son aged 4.  Prior to his arrest he was working as a delivery worker earning up to $9,000 per month.  His father is aged 70 and retired and his mother, aged 52, lives in New Zealand.  He contributed $5,000 per month to the upkeep of the family and remitted $1,000 to his mother in New Zealand.

12.  The main mitigation today is that the defendant pleaded guilty and after his initial obstruction of the police he was immediately co-operative and admitted the offence to which he has pleaded guilty today.  I was told that he committed the offence because of his financial situation.  His wife and son were granted a permit to come to Hong Kong in February 2008 and since that time his finances have become extremely strained.  He had the misfortune to know a person called Ah Man, who induced him to commit this offence as a way of making easy money.

13.  As regards the 2nd defendant it was urged upon me in mitigation that not only has the defendant pleaded guilty today, but he was prepared to plead guilty to this offence right at the outset.  He had always denied being involved in the charge of trafficking in dangerous drugs and it is only today that he has had the opportunity of entering a plea to the 2nd charge of obstructing the police.  I am told that he went to visit his friend, the 1st defendant, for the reason he gave the police - to play video games - and that he was aware of some drugs in the flat although he was not aware of the cannabis.

14.  The 2nd defendant is 23 years of age and works with his father as a transportation worker.  He has been held in custody since his arrest in May of last year and hopes to be released in time to celebrate Chinese New Year with his family.

15.  In connection with the charge to which D1 has pleaded guilty, I have been referred to two cases.  The first case is that of HKSAR v Lee Tak Kwan, 2HKC 371.  This is a case which deals with the guidelines for sentencing in trafficking of Ecstasy and ketamine.  That case has now been superseded by the case of The Secretary for Justice v Hii Siew Cheng, CAAR7 of 2006.  Fortunately for the 1st defendant, the more recent case was not handed down until 6 June of last year, a few weeks after the offence to which he has pleaded guilty.  Had he committed this offence a month later he would have been facing a sentence within the range of 6 to 9 years.  The court, however, has to decide this case on the basis of the sentencing regime which existed at the time of the commission of the offence and the Lee Tak Kwan case establishes that for trafficking in quantities of between 25 and 400 grammes of ketamine the appropriate sentence is 2 to 4 years.

16.  In respect of the trafficking in cannabis, I have been referred to the authority of Attorney-General v Tuen Shui Ming & Anor [1995] 2HKCLR 129.  That case asserts that trafficking in the quantity of cannabis, which the defendant was found in possession of, a sentence of 2 to 3 years is appropriate in respect of cannabis resin.  In dealing with herbal cannabis, because of the lower percentage concentration of THC in the drug there is to be a downward adjustment to take that factor into account and the appropriate sentence would be in the region of 18 months to 2 years.  In respect of the ketamine, the appropriate sentence would be in the region of 2½ to 3 years’ imprisonment.

17.  Counsel for the 1st defendant has quite rightly reminded the court that I have to consider the question of totality in arriving at an appropriate starting point for the two amounts of drugs.  In my view, the starting point for the total amount of drugs would be 3 years’ imprisonment.  I propose to reduce that by one-third to reflect the guilty plea which has been entered by the 1st defendant.  In respect of Charge 1, therefore, I sentence the 1st defendant to 2 years’ imprisonment.

18.  As regards the 2nd defendant, the charge to which he has pleaded guilty is an offence under the Offences Against the Person Ordinance.  The maximum sentence is 2 years’ imprisonment.  As offences of this kind go, this is an offence at the more serious end of the scale.  The defendant was at the premises of the 1st defendant and when the police arrived at the premises he was aware that there were some drugs in the premises, although I accept he was probably not aware of the amount of drugs there.  The tactics of him and the 1st defendant were to delay the police entry to facilitate disposal of the drugs.

19.  I accept the mitigation put forward on behalf of the defendant that his motivation was that he was fearful of being implicated in the possession, and therefore in the trafficking, of the dangerous drugs.  He not only delayed the police entry, he struggled with one of the police officers who were trying to access the premises.  Fortunately, the officer’s injuries were minor.

20.  In respect of that offence, I take a starting point of 9 months imprisonment and I reduce that by one-third to reflect his guilty plea.  The sentence therefore will be one of 6 months’ imprisonment.  As I mentioned previously, the sentence is in breach of an earlier sentence which was suspended for three years.  I order the activation of that sentence and order that it run consecutive to the sentence on the charge to which he has pleaded guilty.

21.  The total sentence, therefore, will be one of 9 months' imprisonment.