HKSAR v. WONG KA CHUN

DCCC587/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 587 OF 2011

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Reasons for Sentence

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1.  The defendant has pleaded guilty to the following five charges, namely,

1) and 2) Possession of a dangerous drug, preferred against him under section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap.134;

3) Possession of apparatus fit and intended for the inhalation of a dangerous drug, laid against him pursuant to section 36(1) and (2) of the same Ordinance,

4) Possession of a prohibited weapon, contrary to section 4 of the Weapons Ordinance, Cap.217, and

5) Assaulting a police officer in execution of duty, brought against him under section 63 of the Police Force Ordinance, Cap.232.

2.  The facts to which the defendant agrees are as follows.  On the evening in question, a team of police officers laid in ambush at a location outside the defendant’s flat in a public housing estate, and when the defendant appeared at the lift lobby, the officers intercepted him for enquiry. 

3.  The officers found in the defendant’s immediate possession nothing of a suspicious character.  They escorted him to his flat to execute a search warrant.  The defendant became emotional and, with his right forearm, bumped into a police officer causing him to hit against the wall.  The defendant became uncontrollable. He yelled and banged his head against the wall.  Other officers subdued him. 

4.  A search was conducted in the defendant’s flat. Inside a toy car were found a total of 10 plastic bags containing the dangerous drug commonly called “Ice”.  There were a large number of resealable plastic bags in the cabinet of the living room.  On the desk inside the defendant’s bedroom were two other plastic bags of “Ice”, eight plastic bags of “Ice” concealed inside two screw-drivers, two inhaling devices with traces of “Ice” in them, one electronic scale, and one extendable baton.

5.  Under caution, the defendant admitted that all the drugs and the inhaling devices found in his flat belonged to him, and explained he put the drugs inside the toy car and the screwdrivers to hide them from his father.  He used the electronic scale and plastic bags, he said, to control the quantity of his drug intake.  Finally, he admitted having purchased the extendable baton a long time ago when he went travelling on the Mainland.  

6.  The “Ice” seized in this case was subsequently confirmed to be 3.47 grammes of a crystalline solid containing 3.30 grammes of methamphetamine hydrochloride.  In the inhaling devices was found a liquid containing 0.15 grammes of methamphetamine hydrochloride.  The extendable baton was a prohibited weapon within the meaning of the Weapons Ordinance.  Finally, the police officer whom the defendant assaulted was found to have sustained minor abrasions on the right wrist and ring finger. 

7.  The court finds the defendant guilty of the five charges.  The defendant has had a total of nine criminal records, eight of which related to offences under the Dangerous Drugs Ordinance.  He has been sent to the DATC on five occasions. 

8.  According to the DATC report, the defendant was born in Hong Kong and is 33 years old.  He has attained Form 3 level and has worked as a waiter, a shampoo boy, a garage apprentice, a carpenter, a transport worker, a packer, and, at the time of his arrest, a decoration worker.  He is single, and is living with his aged father, a retiree.  Under the bad influence of some undesirable peers, the defendant started consuming heroin at the age of 16, and despite numerous attempts to rid himself of the vice habit, he has not succeeded to do so. 

9.  In mitigation, the defence puts forward the following matters for the court’s consideration.  Prior to his arrest, the defendant has been in gainful employment for almost a year making a respectable income.  The defence submits, and this is not disputed by the prosecution, the several exhibits seized in the defendant’s bedroom constituted one single apparatus for inhaling “Ice”.  The defence therefore urges the court to consider the first three charges ensemble. 

10.  A number of District Court decisions have been cited to this court, demonstrating a range of sentences for the offence of possession of “Ice” between 9 weeks and 15 months.  As to the charges of possession of prohibited weapons and of assaulting a police officer, other District Court Judges have sentenced defendants variously to imprisonment for weeks only, but in a case in which this court has passed sentence on the charge of assaulting a police officer, a starting point of 3 months was chosen. 

11.  Finally, the defence hands up a photograph of the extendable baton to show that it has never been used, in support of the defence submission that the defendant has had no intention of using it.      

Discussion

12.  The defence has put forward comparable cases for the court’s consideration.  In respect of the charges under consideration, the court is of the view that each case depends on its own fact.  Consideration must be given to each defendant’s situation and mitigation. 

13.  Drug abuse poses a constant threat to the well-being of the society.  It causes disruption to families, and brings about crimes, ad hoc and organised.  It damages a person, sometimes beyond hope and repair.  Even those who have successfully fought and overcome their addiction, their personalities and emotional make-up are in most cases marred for life; employment opportunities for them are very often limited; and prospects of their reintegration into the society are grim. What often awaits drug addicts and ex-drug addicts is extreme poverty over sustained periods and a life without self-esteem.  The defendant in the present case has been sent to the DATC on five occasions.  His experience demonstrates how harmful and destructive to a person’s life the abuse of dangerous drugs can be. 

14.  “Ice” is a hard drug which can be produced cheaply.  It is highly addictive, and once addicted, the habit is difficult to lose.   In some regards it is even more harmful than heroin.  Hong Kong courts have recognised this fact and have provided a sentence guideline between 12 and 18 months for bona fide users of this drug and heroin (see HKSAR v Mok Cho Tik [2001] 1 HKC 261).  

15.  In the instant case, the defendant’s records show beyond doubt that he is a recidivist. The amount of drugs involved in this case is not particularly small.  Given the number of plastic bags and other paraphernalia seized in this case, there is a latent risk that the drugs may be shared with others. 

16.  The court is of the view that a starting point of 15 months should be adopted on account of the amount of drugs seized and of the fact that the defendant is a recidivist.  This should be enhanced to one of 18 months on account of the latent risk.

17.  The defendant had two inhaling devices but was charged with the possession of one of them.  The fact that the police have seized two such devices is ignored.  A starting point of 3 months’ imprisonment is in order. 

18.  The mere possession of a prohibited weapon is made an offence in Hong Kong for obvious reasons.  The weapon can fall into the wrong hands or can be used in the commission of offences involving violence and injuries to others.  How easily the prohibited weapon can be concealed and how deadly it is when used in offences of violence, as well as the circumstances of its seizure, are all relevant in the determination of a proper sentence.  The court notes that an extendable baton is a rather dangerous weapon.  A direct blow can cause grievous bodily harm.  In the circumstance of this case, the court is of the view that a starting point of six months is appropriate. 

19.  Hong Kong adheres to the rule of law.  Its success as a world financial and commercial centre depends on it.  Assaulting a police officer represents a direct challenge to this essential quality of Hong Kong life, and a deterrent sentence is called for.  In this case, the police officer the defendant assaulted has suffered minor injuries.  A starting point of three months’ imprisonment is warranted. 

20.  Apart from his guilty pleas, nothing in the defendant’s personal and family circumstances would warrant any further discount. 

Conclusion

21.  In the result, the court adopts a starting point of 18 months’ imprisonment for Charge 1, which is reduced by one-third on account of the defendant’s guilty plea to one of 12 months’ imprisonment.

22.  In respect of Charge 2, a starting point of 12 months is appropriate, which is likewise reduced by one-third to one of eight months’ imprisonment. 

23.  The starting point for Charge 3 should be three months’ imprisonment.  It should be reduced by one-third to two months. 

24.  The appropriate starting point for Charge 4 is six months, which is reduced to one of four months’ imprisonment. 

25.  Finally, a starting point of three months is adopted for Charge 5, which is reduced to two months’ imprisonment.

26.  The court has considered the totality principle and orders that the sentences for Charges 1, 2 and 3 should be served concurrently, resulting in a sentence of 12 months’ imprisonment.  

27.  One month of the sentence for Charge 5 should run consecutively to the four months for Charge 4, making a total sentence for the two charges one of five months’ imprisonment, and four months of the sentence for Charges 4 and 5 should run consecutively to the 12 months’ imprisonment for Charges 1, 2 and 3, resulting in a final sentence of 16 months’ imprisonment. 

28.  The court considers that in the defendant’s circumstances, an effective starting point of 2 years’ imprisonment would adequately reflect the criminality of the five charges. 

Order

29.  The defendant is sentenced to 16 months’ imprisonment.