COURT: The defendant on his own plea was committed to this court for sentence. He confirms his plea in front of me of the following offences and his admission of the facts.
Charge 1, handling stolen goods. On an unknown day between the 1st day of February 2021 and 8th day of February 2021, both days inclusive, in Hong Kong, dishonestly received a stolen good, namely, a motorcycle.
Charge 2, on 8 February 2021 at a pavement near lamppost FC4101, Castle Peak Road, Mai Po, Lok Ma Chau, New Territories, in Hong Kong, assaulted Lau Wai-wai, a police officer, in the due execution of his duty.
Charge 3, assaulting a police officer in the due execution of his duty. On 8 February 2021, at a pavement near lamppost FC4101, Castle Peak Road, Mai Po, Lok Ma Chau, New Territories, in Hong Kong, assaulted Lam Chau-kwun, a police officer, in the due execution of his duty.
Charge 4, trafficking in dangerous drugs, on 8 February 2021 at a pavement near lamppost FC4101, Castle Peak Road, Mai Po, Lok Ma Chau, New Territories, in Hong Kong, unlawfully trafficked in dangerous drugs, namely:
(1) 0.21 grammes of a solid containing 0.2 grammes of cocaine; and
(2) 158.71 grammes of a solid containing 157.15 grammes of methamphetamine hydrochloride.
Charge 5, trafficking in dangerous drugs. On 8 February 2021 at 4th Floor, No. 78 Mai Po Tsuen, Castle Peak Road, Mai Po, Lok Ma Chau, New Territories, in Hong Kong, unlawfully trafficked in dangerous drugs, namely:
(1) 10.62 grammes of a solid containing 10.29 grammes of cocaine;
(2) 8.85 grammes of a solid containing 8.72 grammes of methamphetamine hydrochloride; and
(3) 1.27 grammes of a powder containing 0.93 grammes of ketamine.
Charge 6, dealing with property known or believed to represent proceeds of an indictable offence. On 8 February 2021, at 4th Floor, No. 78 Mai Po Tsuen, Castle Peak Road, Mai Po, Lok Ma Chau, New Territories, in Hong Kong, knowing or having reasonable grounds to believe that property, namely, a total sum of 1,333,500 Hong Kong currency in cash in whole or in part, directly or indirectly represented the proceeds of an indictable offence, dealt with the said property.
The facts as admitted by the defendant are these.
As regards the 1st charge, handling stolen goods, on 24 December 2020, a motorcycle with registration mark VT871 (the motorcycle) which was owned by PW3 was stolen. PW3 reported the case to the police on 25 December 2020.
On 19 January 2021, PW4 parked his motorcycle with registration mark KW8861 on Hong Yip Street, Yuen Long. On the morning of 21 January 2021, PW4 found the car plate as well as the vehicle license of KW8861 was missing. He reported the case to the police on 26 January 2021.
On an unknown day between 1 February 2021 and 8 February 2021, the defendant bought the motorcycle from a male name ‘Ah Fai’ at $3,000. He suspected that the motorcycle might be a stolen property and therefore he did not transfer the car plate of the motorcycle.
The 2nd and 3rd Charges - Assaulting Police Officers
On 8 February 2021, while police officers Lau Wai-wai, PW1, and Lam Chau-kwun, PW2, were patrolling along Castle Peak Road, they found that the motorcycle, bearing the registration mark of NG5317 was parked near lamppost FC4101, Castle Peak Road, Mai Po. The officers checked the vehicle license of the motorcycle being a different number, KW8861. Hence PW1 and PW2 laid ambush.
While the defendant approached the motorcycle, PW1 and PW2 intercepted him and revealed their police identities. The defendant suddenly bumped into PW1’s chest and attempted to flee. PW1 chased after the defendant and scratched his hand to get hold of defendant. While defendant was struggling with PW1 and PW2, he dropped his helmet and the recycle bag onto the ground. PW2 repeatedly said “Police, freeze and calm down” but the defendant ignored him. In the course of their struggling, defendant bit PW1 on his forehead and PW2 on his right forearm, causing injuries to them who are in due execution of their police officers’ duties.
Upon medical examination, human bite was noted over left temporal area of PW1 with no active bleeding, discharge, swelling, or laceration. Abrasion was found on his right knee, tenderness was also noticed on his left deltoid muscle. PW1 was treated and discharged from the hospital on the same day.
Upon medical examination, right forearm human bite, sprained right wrist, and right knee abrasion were found on PW2. He was treated and discharged from the hospital on the same day.
4th Charge - Trafficking in Dangerous Drugs
Defendant was finally subdued. Upon search of the said recycle bag and shoulder bag belonging to the defendant, one plastic bag containing 0.21 grammes of a solid containing 0.2 grammes of cocaine, P1, 23 plastic bags containing 158.71 grammes of a solid containing 157.15 grammes of methamphetamine hydrochloride, P2, and 201,000 Hong Kong currency in cash were found. Defendant was arrested for trafficking in dangerous drugs. Under caution at the scene, defendant remained silent.
Charge 5 - Trafficking in Dangerous Drugs
Upon search of the defendant’s residence at 4th Floor, No. 78 Mai Po Tsuen, Castle Peak Road, Mai Po, Lok Ma Chau, New Territories, two plastic bags containing 10.62 grammes of a solid containing 10.29 grammes of cocaine, P3, seven plastic bags containing 8.85 grammes of a solid containing 8.72 grammes of methamphetamine hydrochloride, P4, one plastic bag containing 1.27 grammes of a powder containing 0.93 grammes of ketamine were found, P5.
Charge 6 - Money Laundering
Inside a safe in the premises, that is the place of residence of the defendant, 1,333,500 Hong Kong currency was found.
Video-recorded Interview
In the subsequent video-recorded interview, the defendant claimed that he was living in the premises. All the drugs found on him and inside the premises belonged to him. He purchased the motorcycle for storing drugs three to four days prior to 8 February 2021. While he was buying the motorcycle, he had already suspected that it was a stolen property.
The involved drugs, P1 and P3, were 10.83 grammes of a solid containing 10.49 grammes of cocaine. P2 and P4 were 167.56 grammes of a solid containing 165.87 grammes of methamphetamine hydrochloride. P5 was 1.27 grammes of a powder containing 0.93 grammes of ketamine.
According to the drug expert, the estimated street value of the seized dangerous drugs in February 2021 are: P1, HK$281; P2, HK$93,639; P3, $5,232; P4, $14,231; P5, $756.
At the material time, the defendant possessed P1, P2, P3 to P5 for the purpose of trafficking.
Personal Background
The defendant is currently 52 years old. He was born and raised in Hong Kong. He received education up to Secondary 2 and has worked as a dim sum cook, delivery worker, casual worker previously. At the time of the offence, defendant was a part-time construction worker earning about $10,000-odd per month. The defendant has two marriages. He has one son under the first marriage at the time of the offence defendant has a girlfriend and they have a three-year-old daughter.
The defendant has a number of previous conviction records, spanning between 1989 and 2014. Amongst these records, there are four records of possession of dangerous drugs and four records of trafficking in dangerous drugs. The defendant was sentenced for two counts of trafficking in dangerous drugs in 2014 for 8 years’ imprisonment. He was released in late November 2018.
Mitigation
Counsel submits that the defendant has never been a professional handler and does not belong to any syndicate in stealing vehicles. He has no connection with the original offence. It is submitted that the defendant assaulted the police out of momentary impulse and the injuries suffered are not too severe.
As regards his commission of trafficking offences, counsel submits that the defendant was in need of quick money for his pregnant girlfriend. He would receive $3,000 for delivering the drugs under Count 4 and $2,000 for storing drugs under Count 5. Counsel submits that the defendant was only a delivery man and storekeeper. Counsel also submits that the defendant was arrested close to where he lived, that drugs under Count 4 were taken out from those under Count 5.
As regards the money under Count 6, counsel submits that there is no evidence of the predicate offence and it is submitted that the money was originated from an acquaintance of the defendant who had no relationship with dangerous drugs. Defendant was paid $10,000 for keeping the subject money for the friend. Above all, the defendant wishes to see his girlfriend and daughter as soon as possible.
Discussion
Charge 1, the nature of handling stolen goods encompasses a wide range of circumstances in which the offence can be committed that requires this court to consider all relevant factual circumstances in order to determine an appropriate sentence. Although sentencing for handling stolen goods is highly dependent on the facts of each case, it is recognised that the sentences are usually within the range of 2 to 4 years (the case of R v Chan Wing Kwan and HKSAR v Nones Carmelita Galay and Another).
I will take into account the usual range of sentences while bearing in mind that the above said range is indicative but not absolute and it shall not hamper the exercise of my discretion to depart from it.
I have considered the list of factors in the case of Cheng Chi Wai and find that there is no evidence demonstrating the defendant’s connection with the original offence and the sophistication in handling.
In relation to the value of the stolen goods and the profits gained by the defendant, as I have not been provided with a fair value of the motorcycle, I am unable to determine the gravity of the offence on his aspect.
Giving the defendant the benefit of doubt, I do not think the facts of this case are serious comparing with those this court has dealt with.
Counsel submits that the defendant suspected or believed the motorcycle in question was a stolen property. I noticed that the motorcycle bore a vehicle license that does not belong to the motorcycle and the registration mark did not correspond to the mark of the vehicle license. I was told that no proper vehicle registration process was conducted. Also, the defendant claimed he purchased the motorcycle for only $3,000. He must have known or believed that the motorcycle was stolen property. I find that he purchased the motorcycle for the purpose of delivering dangerous drugs. I accept counsel’s submission that the defendant’s previous records of dishonesty should not be considered for they are of different nature from the offence under Charge 1.
Charges 2 and 3, there is no sentencing tariff for the offence of assaulting police officers. However, it has been stressed by the courts in Hong Kong on many occasions that assaulting police officers is a serious offence and the sentence for it should be deterrent. As such, a custodial sentence is generally necessary (see the case of Secretary for Justice v Ko Wai Kit, Paul).
The defendant assaulted two police officers when he resisted arrest and attempted to flee from the scene. Defendant even bit PW1 on his forehead and PW2 on his forearm. Let us not forget it was the time when COVID was prevailing. Although the police officers did not suffer from severe injuries, this should not undermine the seriousness of the offences. Although there is no tariff applicable, courts normally adopt a starting point of several months’ imprisonment for an offence similar to the present one. In sentencing the defendant, I will not place weight on his previous record involving the use of violence and misleading police officers.
Charges 4 and 5
For many years, the community of Hong Kong has taken a severe view of drug trafficking, particularly in relation to drugs such as cocaine, methamphetamine hydrochloride, and ketamine. No doubt, the drug has terrible consequences for the individual but there are also serious consequences for the community. The view of the community is reflected by the courts in the nature of the sentences and levels of those sentences traditionally imposed for drug trafficking.
The sentencing policy underlying is to impose deterrent sentences. The courts have provided sentencing guidelines for trafficking in dangerous drugs. As confirmed in AG v Pedro Nel Rojas, the guidelines for trafficking in cocaine originally from those for trafficking in heroin in R v Lau Tak Ming. As regards the sentencing guidelines for methamphetamine, the sentencing guidelines are contained in AG v Ching Kwok Hung as amended in the case of Capitania Edwin F as revised in Tam Yi Chun. The guidelines for trafficking in cocaine are laid down in SJ v Hii Siew Cheng.
I accept Mr Iu’s submission that a combined approach should be applied to determine the sentence for both Charges 4 and 5. That said, I still have to consider the appropriate sentence for Charges 4 and 5 individually.
Charge 4 involves two kinds of drugs. Given the minor quantity of cocaine involved, I shall consider the sentence in light of the quantity of ‘Ice’, namely, 157.15 grammes of methamphetamine. According to Tam Yi Chun, this quantity of ‘Ice’ falls within the band of 70 grammes to 300 grammes, attracting 11 to 15 years’ imprisonment. For 157.15 grammes of ‘Ice’, I adopt a starting point of 12 years and 6 months’ imprisonment.
Charge 5 involved three kinds of drugs, namely, 10.29 grammes of cocaine, 8.72 grammes of ‘Ice’, and 0.93 grammes of ketamine. According to the absurdity test, the quantity of drugs would result in 7 years and 8 months’ imprisonment. In terms of the conversion test, the quantity will result in 7 years and 3 months’ imprisonment. In adopting the ratio test, it will result in 6 years and 7 months’ imprisonment.
It was submitted on the defendant’s behalf that the defendant was no more than a delivery man cum storekeeper. I am unable to accept it. Defendant kept the drugs in his place of residence. He delivered those drugs under Charge 4 out of the drugs he kept at home. Defendant even bought a motorcycle showing false identification. Whilst there is no evidence of the defendant being a manager or organiser, operator or financial controller, I find that he at least is involved in actual or direct trafficking. As such, an enhancement of 4 months’ imprisonment for each of Charges 4 and 5 is appropriate to reflect the more serious role he played.
The defendant has numerous conviction records involving drugs which amounts to an aggravating factor. Further, multiple drugs are involved. I therefore enhance the sentence of each of Charge 4 and Charge 5 by 4 months’ imprisonment. Hence, the starting point for Charge 4 becomes 13 years 2 months’ imprisonment and that for Charge 5 becomes 7 years and 3 months’ imprisonment.
Having done the assessment for each of Charges 4 and 5, I will adopt the combined approach at the conclusion of the exercise. I also bear in mind the case of Lee Ming Ho.
Charge 6, there is no sentencing tariff for money laundering. The relevant considerations include but are not limited to the amount, nature of the trafficking offence, knowledge of the offender, international dimension, sophistication, number of transactions and the relevant length of time (see the case of Boma Amaso).
Although I have serious doubts as to the submission that the money kept by the defendant was unrelated to drug dealing activities, I give the defendant the benefit of the doubt. I have also considered the cases of Xu Xia Li and Wang Kwok Keung. I opine that a starting point of 2 years is appropriate for Charge 6.
Sentence
In view of the above, I adopt a starting point of 2 years’ imprisonment for Charge 1. The defendant’s guilty plea warrants a one-third discount. He is therefore sentenced to 16 months’ imprisonment.
I will adopt 6 months’ imprisonment as a starting point for each of Charges 2 and 3. With a one-third discount for his timely plea, I sentence the defendant to 4 months’ imprisonment for each of Charges 2 and 3.
As stated before, the enhanced starting point for Charge 4 is 13 years and 2 months’ imprisonment and therefore Charge 5 is 7 years and 3 months’ imprisonment. One-third discount shall be given which will result in 8 years 9 months and 4 years 10 months respectively.
Further, a combined approach should be adopted in dealing with Charges 4 and 5 in order to achieve a fair result. The result for adopting the absurdity test of a total of 177.29 grammes of ‘Ice’ would be 12 years and 10 months’ imprisonment. The results for adopting the conversion test would be 12 years and 9 months. The result for adopting the ratio test would be 12 years and 9 months for both Charges 4 and 5.
I then enhance the combined sentence due to the aggravating factors mentioned before by 8 months. The combined starting point of Charges 4 and 5 shall be 13 years and 5 months’ imprisonment.
Given the defendant’s timely plea, the combined sentence for Charges 4 and 5 shall be 8 years and 11 months’ imprisonment. In other words, 2 months of Charge 5 be consecutive to the individual sentence of Charge 4.
In respect of Charge 6, one-third discount shall be given which would result in 16 months’ imprisonment.
Ultimately, having considered the totality principle and the likely effect of the overall sentence on the defendant, I order 6 months of the sentence for Charge 1, 2 months of the sentence of Charge 2, and 6 months of the sentence of Charge 6 be consecutive to the combined sentence of Charges 4 and 5. The sentence of Charge 3 be concurrent to the combined sentence of Charges 4 and 5.
Defendant, you are therefore sentenced to 10 years and 1 month’s imprisonment.
(Proceedings from 3.00 pm to 3.23 pm not required)
COURT: So for record purpose, the defendant is sentenced to 10 years and 1 month’s imprisonment.