HKSAR v. KONG MING KIN

DCCC 432/2023

[2023] HKDC 1618

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 432 OF 2023

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REASONS FOR SENTENCE

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1.  The defendant faces a total of six charges and has entered pleas of guilty to those charges, accepted the facts and been convicted of the offence. Three of the charges relate to claiming to be a member of a triad society. There is a 4^th charge of possession of a dangerous drug, a 5^th charge of inhaling a part of that dangerous drug and a 6^th charge of failing to surrender to custody without a reasonable excuse. The defendant had indicated a plea of guilty to these charges from the earliest available opportunity.

2.  The facts that the defendant has admitted show that the charges arise out of a police operation to infiltrate a triad society which took place in 2017. The charges arise out of the evidence of PW1 who was a police officer who witnessed the events of the first five charges. The facts show that charges 1 to 3 arose from conversations between PW1 and the defendant in which on three separate occasions in March and April 2017 the defendant made claims of membership of a triad society, particularly the “Sun Yee On” triad society.

3.  The 4^th charge involves the defendant admitting to possession of a dangerous drug, namely 0.10 grammes of a solid containing cocaine. This occurred on 20 September 2017 and charge 5 on the same day the defendant inhaled cocaine in a public toilet in Tuen Mun. Charge 6 shows that the defendant having been admitted to bail failed to surrender to custody on 27 January 2023, the date appointed by a court.

4.  The defendant’s background can be seen from the antecedent statement admitted to the court. The defendant in 2015 was convicted of two offences of claiming membership of a triad society, was concurrently placed on probation for each charge for 12 months. The defendant was at the time of those offences would have been in the age range of 15 to 16 years old. At the time of the instant offences he would have been 18 years old, save for charge 6 when he was 23 years old. The defendant was educated to secondary level in Hong Kong and has worked in the logistics sector after school graduation.

5.  The defendant has produced letters of mitigation which included a letter from what is HUGS or H-U-G-S Caritas Centre which show the defendant’s efforts to undergo voluntary drug treatment. The defendant has been in custody since his re-arrest and submits he has received both drug treatment and due to his incarceration would not require admission to a Drug Addiction Treatment Centre at this stage.

6.  The approach to sentencing in these cases is as follows:

7.  The defendant has pleaded guilty. He has indicated a plea from an early time. He is entitled from that to a one-third discount from the starting point of any sentence.

8.  As far as the offences of claiming membership of a triad society are concerned there is no sentencing guideline or tariff for these offences. Such claims can involve various degrees of culpability. The determined starting point for sentence will depend upon the severity of the claim and its threatening nature, whether it is uttered in a social environment or another setting. Sentences for these offences can range from as low as 3 months’ imprisonment upwards. Some support for that proposition can be seen from the case of HKSAR v Chan Kin Kwok & Another at HCMA 235/2007.

9.  The offences in this case appear to have been within a social setting and involved conversations between the undercover police officer and the defendant. However, the aggravating factor in respect of these facts is that the defendant has previous convictions for the same offences. Having regard to the factual setting of the offences, I determine that in respect of these three charges the appropriate starting point for sentence will be one of 6 months’ imprisonment. That means that in respect of each charge the defendant will be sentenced to a sentence of 4 months’ imprisonment after deduction for plea of guilty.

10.  The defendant faces a charge of possession of a dangerous drug in charge 4. There is reference to an appropriate starting point for sentence in the case of HKSAR v Mok Cho Tik at [2001] 1 HKC 261 where it said the mere possession of a quantity of dangerous drug which a user would normally have in his position should attract a sentence in the range of 12 to 18 months’ imprisonment. The quantity of drug in this case in the charge is 0.10 grammes. This indicates there is little or no latent risk factor to consider to enhance the normal starting point for sentence. The defendant has no previous convictions for drugs offences and has entered into voluntary drug treatment centre through Caritas. I consider a proper starting point for sentence for the 4^th charge to be one of 15 months’ imprisonment reduced to 10 months’ imprisonment for the defendant’s plea of guilty.

11.  Charge 5 involves the inhaling of what would be a small quantity of that dangerous drug, cocaine. The sentencing factors for charge 5 are broadly similar to those of charge 4. I will therefore adopt the same sentence as in charge 4, namely a starting point of 15 months’ imprisonment reduced to 10 months for a plea of guilty.

12.  As far as charge 6 is concerned, failure to surrender to custody without reasonable cause, the maximum applicable sentence would be one of 12 months’ imprisonment. There is again no guideline or tariff for this offence. The appropriate starting point for offences such as this kind is generally related to the period of time the defendant has evaded custody. That period in this case was from 27 January 2023 to 13 March 2023, so 1½ months. The defendant’s mitigation that he had lost the information on the dates really does not help him I think. This is a serious offence and involving breach of a court order in a criminal process. The appropriate starting point for sentence in a case such as this in my consideration is one of 3 months’ imprisonment which will be reduced to 2 months’ imprisonment for the defendant’s plea of guilty.

13.  As far as the overall total sentence is concerned, the defendant faces multiple sentences of imprisonment on multiple charges. It is necessary to consider the overall total appropriate sentence in regard to whether these sentences should be served consecutively or concurrently. I consider that the overall sentence of imprisonment for the defendant in the circumstances of these six charges should be one of 20 months’ imprisonment and I will achieve that as follows:

14.  I have already indicated on each of the 1^st, 2^nd and 3^rd charges the sentence will be one of 4 months’ imprisonment. Charges 1 and 2 will be served consecutive to one another and charge 3 will be served concurrently to charges 1 and 2. That is a total of 8 months’ imprisonment for charges 1 to 3.

15.  Charges 4 and 5 will be served concurrently to each other but consecutively to charges 1 to 3. That leads to a running total of 18 months’ imprisonment.

16.  And charge 6 will be served consecutively to charges 1 to 5 leading to a total of 20 months’ imprisonment.

17.  That will be the order of the court.