HKSAR v. YIU KWOK KEI

DCCC 856/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 856 OF 2016

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REASONS FOR SENTENCE

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Charges

1.  The defendant pleaded guilty to one charge of possession of dangerous drugs (Charge 1)[1] and one charge of resisting a police officer (Charge 2)[2].

Facts

2.  In the early hours of the day, the defendant was found by the police on a street in Mong Kok area.  After being intercepted, he was found in possession of cash $2,000.  He also had with him six bags of dangerous drugs, namely:-

(1) one bag containing 0.18 grammes of solid containing 0.10 gramme of cocaine;

(2) one bag containing 0.51 gramme of a powder containing 0.13 gramme of ketamine;

(3) one bag containing 1.57 grammes of powder containing 0.45 gramme of ketamine;

(4) one bag containing 3.03 grammes of solid containing 2.96 grammes of methamphetamine hydrochloride (Ice);

(5) one bag containing 3.13 grammes of solid containing 3.07 grammes of Ice;

(6) one bag containing 3.44 grammes of solid containing 3.35 grammes of Ice.

3.  In total, there are:-

(a) 0.18 grammes of solid containing 0.10 gramme of cocaine;

(b) 2.08 grammes of powder containing 0.58 gramme of ketamine;

(c) 9.6 grammes of solid containing 9.38 grammes of Ice.

4.  The estimated street value of the above dangerous drugs is $3,000.

5.  In the course of arrest, the defendant tried to flee and put up a vigorous struggle with the police officer.  The defendant used his elbow to hit the officer thus caused the officer’s left shoulder to dislocate.  The defendant was subdued after police reinforcement arrived. 

6.  The officer was conveyed to hospital for medical treatment and was given about 2 months’ sick leave.  The prosecution confirmed in court that the officer totally recovered now.

Mitigation

7.  The defendant is now 38 years old.  He is single, living with siblings.  His lawyer submitted that he worked in a construction site earning about $18,000 per month before he was arrested. 

8.  Defence lawyer submitted to the court some cases concerning latent risk of dissemination.  He asked this court not to enhance the sentence at all because he said the risk does not exist in this case. 

9.  The defendant was warned that imprisonment was what was in mind, but because of some legal requirement the sentence had to be adjourned for a drug addiction centre report.  Report arrived today which does not recommend admission to the centre. 

Previous convictions

10.  As said, the defendant is now 38 years old, he has a long history of criminal convictions.  He has been convicted on 38 occasions in total.  He started transgressing the law when he was only 11 years old.  In the few years after, he committed mainly dishonesty related offences. At the age of 17, he committed the first dangerous drugs possession offence and was sent to a drug addiction treatment centre.  From then on and until a few weeks before the present offence, he was a frequent prison inmate.  Up to now, for simple possession, he had 18 convictions.  The defendant is a deep-rooted drug dependant and is a recidivist.  For resisting police, he had three convictions, the last of which was dealt with by way of 2 weeks’ imprisonment.

Case

11.  The quantity of the drugs found in the defendant’s possession is not small which requires this court to consider the latent risk of dissemination to other people.  The authority on the point is HKSAR v Mok Cho Tik[3], where the three steps’ approach is employed, ie, first, ascertain the appropriate starting point of simple possession; two, assess the risk of dissemination and if needed, quantify it and enhance the starting point accordingly; three, discount the result for, say, the plea of the defendant.

12.  In particular, it was stated on page 267 of Mok Cho Tik (abstract):-

“Sentencing is an art, and we emphasise that the starting points and the degrees of enhancement for the risk factor must bend to the circumstances of each case. We remain of the view that the starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months (and that is the range that has been adopted particularly for cases in the District and High Court). But that is not the be all and end all of the appropriate starting point. It assumes cases in which a sentence of imprisonment rather than a rehabilitative measurement is deemed necessary; and it does not seek to exclude magistrates from imposing lesser terms for very small quantities where the circumstances so warrant. Obviously the quantity will be the main governing factor which will determine where the starting point will lie. If an offender is a persistent offender he can expect the starting point to be higher than it otherwise would be. The existence of the risk factor and the degree of risk is not a matter of mathematics upon which this court should provide a tariff. Amongst the obvious factors to be taken into account are whether the offender is in employment; whether the drugs are kept in a place to which others have access; whether the offender has convictions for trafficking; and of course the quantity of drugs. The full circumstances of the risk must be assessed.”

Step 1

13.  In Mok Cho Tik (above), the drug possessed was almost 16 grammes of solid containing 15 grammes of Ice.  The defendant there has one previous possession conviction.  The starting point was adjusted on appeal to 18 months’ imprisonment. 

14.  In Wan Sheung Sum[4], the drugs possessed were about 48 grammes of mixture containing about 34 grammes of heroin hydrochloride.  The defendant had four possession convictions.  The starting point adopted on appeal was 16 months’ imprisonment.

15.  The total quantity of drugs in this case is smaller than the above two authorities, but the defendant here has a lot more possession convictions (18), a recidivist.  All in all, a 17 months’ starting point is adopted.  In computing so, 15 months was accorded to the quantity and 2 months was for his appalling record. 

Step 2

16.  As said, the defendant was a frequent prison inmate.  He could hardly secure any long-term job in the past, together with the fact that he is a hardened drug user, his chance to steady employment is low.  There is no information that he could derive financial help from his siblings.  It is inconceivable that the defendant is financially sound. 

17.  There is a real chance that at times when the defendant needs cash for his daily expenses, his ready option is to share the drugs he has with his undesirable peers which acquaintances must be readily around him given his long time habit of drug abuse. 

18.  The fact that he possessed three types of drugs makes it even worse as more choices are available for more types of potential consumers. 

19.  In addition, instead of staying at home, the drugs were found in his possession on the street.  There is no information whether the defendant just bought the drugs and thus was on his way home or otherwise, but the fact remains that they were with him on Nathan Road in Mong Kok instead of being locked up in any secure location. 

20.  All in all, a 4-month enhancement for the latent risk is justified.

Step 3

21.  The defendant pleaded guilty as soon as the trafficking charge was amended to simple possession.  Full one-third discount should be afforded to him. 

Charge 1 sentence

22.  For possession of dangerous drugs, the defendant was sentenced to 14 months’ imprisonment.  Again it was arrived at by a 17 months’ starting point, enhanced by 4 months and discounted by one-third.

Charge 2 - resisting police officer

23.  There is no tariff authority or major guidelines for resisting police officer in his execution of duty because the possible factual scenario giving rise to the offence is too variable. However, protection of the lawful police and the need for their effective execution of duties are of paramount importance to the society.  There is no information on the facts about how long the struggle lasted and how many times the defendant hit the officer which would otherwise help the court to ascertain the extent of his culpability.

24.  Unlike fractured nose bridge or swollen eyes, dislocation of shoulder joint can be attributed to by a number of factors not necessarily exclusively caused by the action of the defendant, for example, the position of the officer at the time and/or the action on his part at the moment.  However, his joint would not be dislocated at all if the defendant obeyed instructions.

25.  It is also noted that with 2 months’ sick leave, the officer has fully recovered now.

26.  The defendant has resisted some police officers three times in the past and was imprisoned for 2 weeks in the last two occasions.  This time the sentence should be increased and 6 weeks’ imprisonment is adopted as the starting point.  After one-third guilty plea discount, the sentence is reduced to 4 weeks’ imprisonment. 

27.  The resisting offence is different in nature from the possession charge and his sentence should be served additionally. Totality is considered, but adding 4 weeks to the 14 months’ imprisonment is not unacceptably harsh on the defendant and therefore the 4 weeks’ imprisonment is to run totally consecutive to the 14 months’ imprisonment of Charge 1, thus making a total of 14 months and 4 weeks’ imprisonment in this case. 

Final sentence

28.  Charge 1, 14 months’ imprisonment; Charge 2, 4 weeks’ imprisonment, to run totally consecutive to the Charge 1 sentence and therefore 14 months and 4 weeks’ imprisonment in total today.