HKSAR v. LI RONG

DCCC 710/2023

[2024] HKDC 1299

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 710 OF 2023

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REASONS FOR SENTENCE

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1.  D1 is convicted on her own plea and agreement to Amended Summary of Facts to a charge of wilfully obstructing police officers in the due execution of their duties, contrary to section 36(b)  of the Offences against the Person Ordinance, Cap 212 (1^st charge); a charge of trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134 (2^nd charge); and a charge of possession of a dangerous drug, contrary to section 8(1)(a)  and (2)  of the Dangerous Drugs Ordinance, Cap 134 (6^th charge).

2.  As for the 3^rd, 4^th and 5^th charge, they are left on court file and not to be proceeded with without leave of the court.

Facts

3.  At around 1930 hours on 13 December 2022, police officers arrived outside Room 2601, M1 Hotel, No 28 Portland Street, Yau Ma Tei, Kowloon, Hong Kong (“the Room”).  A staff of M1 hotel knocked on the door of the Room, revealed his identity and asked the door be opened, but no one answered.  The staff then tried to open the door with the room card provided by M1 Hotel but was unsuccessful. 

4.  Police officers then stated that they were police officers and that they had a search warrant.  They kept knocking on the door and requesting the door be opened.  At this juncture, a person inside the Room said “won’t open”.  The police officers issued a warning that they would break into the Room and would arrest those inside the Room for the offences of “wilfully obstructing police officers in the due execution of their duties”.  However, those inside the Room failed to open the door.

5.  Police officers later tried to prize open the door.  While the police officers were doing so, a female inside the Room shouted “Get the knife!  Get the knife!  Don’t come in or I will stab you with a knife.”  At around 1942 hours on the same day, the police officers eventually opened the door using a door ram.

6.  Upon entry, D1 was sitting on the bed.  Female B and Male D were standing beside the bed, and Male C was in the toilet.  Police officers let them know their police identities again.  They also showed them a search warrant.

7.  Body search was conducted on D1, during which 2 room cards were found on her as well as 4 mobile phones.  Cash of HK$9,729.6 and ¥1,960 Renminbi were found in the personal belongings placed next to D1.  D1 then told police that she rented the Room for treating her friends (Female B, Male C and Male D)  and she refused to open the door because she was afraid that someone would rob her of her dangerous drugs.

8.  Search was conducted in the Room and the following items were found:-

(a)  A glass bottle with two openings, containing 44 millilitres of a liquid containing traces of cocaine. Government chemist confirmed that it could be used as an inhaling device.

(b)  A glass bottle with two openings, containing 43 millilitres of a liquid containing traces of methamphetamine. Government chemist confirmed that it could not be used as inhaling device.

(c)  A green box containing:-

(i)  A plastic bag containing 0.26 gramme of a solid containing pseudoephedrine, which was included in Part 1 of the Poisons List;

(ii)  7 plastic bags containing 3.9 grammes of a crystalline solid containing 3.81 grammes of methamphetamine hydrochloride (“ICE”); and

(iii)  A plastic bag containing 0.85 gramme of solid containing 0.84 gramme of cocaine.

(d)  A plastic bag containing multiple empty plastic bags.

(e)  A red box containing a plastic bag containing 1.22 grammes of cannabis in herbal form as well as a plastic bag containing 0.82 gramme of cannabis in herbal form and traces of a solid containing cocaine.

(f)  An electronic scale.

9.  D1 then told police officers that the dangerous drugs belonged to her and she consumed the drugs inside the Room, and that she had provided the drugs to Female B, Male C and Male D inside the Room. 

10.  D1 was later arrested on the same day for the offences of wilfully obstructing police officers in the due execution of their duties.   Under caution, she said she did not know they were police officers but she did not have the courage to open the door as there were dangerous drugs inside the Room.

11.  D1 was further arrested for the offence of trafficking in dangerous drugs.  Under caution, she said she bought the drugs from a person for self-consumption and treating her friends.

12.  In the video-recorded interview later conducted on D1, under caution, D1 stated, inter alia, that:-

(a)  She consumed the drugs inside the Room to relieve the pain, and she would sometimes consume the drugs together with her friends.

(b)  When she was consuming ICE, Female B, Male C and Male D wanted to take a few drags so she passed the ICE to them for their consumption.

(c)  She did not open the door because police officers were not wearing their uniform and she was assaulted and robbed by someone who gained access to the Room by pretending to be police officer earlier on. Her friends asked her to call the police while they were propping against the door. She was unable to make the call as her hands were shaking.

(d)  The electronic scale found inside the Room was for weighing the ICE for her own consumption.

(e)  Regarding the 4 mobile phones found on her, 3 of them belonged to her and the other one belonged to her daughter.

13.  Government chemist confirmed the narcotic contents of the drugs seized. The total estimated retail value of the drugs was around HK$3,167.11 in December 2022.

14.  D1 was the registered occupant of the Room at the material time.

Criminal Record

15.  D1 has a clear record.

Mitigation

16.  D1 is aged 50.  She is single with one daughter and an elderly mother. The daughter was in university at the time of arrest. 

17.  In relation to the 1^st charge, defence counsel conceded that the 1^st charge is a serious offence.  He said that the same would normally call for immediate custodial sentence from several weeks to several months, and that there is no sentencing guideline for this offence.  He said that there is no evidence to show that D1 was trying to destroy any incriminating evidence when police was trying to gain entry into the room.  D1 also explained to police that she had the experience of being robbed in the room by someone pretending to be police officers in the past, and therefore she had doubt about the true identity of the police officers. It was said that a 999 call was actually made and that police was not injured in the incident. Defence counsel submitted a starting point of 4 to 4.5 months appropriate in the circumstances. 

18.  As for the 2^nd charge, defence counsel submitted the notional sentencing starting point using the absurdity test, ratio test and conversion test.  He submitted that the notional sentencing starting point by just taking into consideration of the ICE and the cocaine in question would be appropriate as the amount of cannabis in question is not substantial, and that the sentencing starting point would be around between 4.52 to 4.86 years. 

19.  He also conceded that as three drugs were involved, there would be an aggravating factor which would lead to enhancement of the sentencing starting point. 

20.  He urged this court that as D1 has pleaded guilty, she should be entitled to one-third sentencing discount.  Further, as she was an abuser of drugs, the court should exercise some discretion and give her further sentencing discount in that regard. 

21.  It was also said that because D1 had a “suprasellar density” which affects her vision and causes headaches, it might account for a reason for her consumption of drugs.

22.  As for the 6^th charge which is possession of dangerous drugs, the drugs in question is only 43 millilitres of liquid containing traces of methamphetamine.  Defence counsel submitted that following the guidelines in the case of HKSAR v Mok Cho Tik [2001] 1 HKC 261 and taking into consideration the minimal amount of drugs involved, 12 months’ starting point is appropriate.

23.  He further submitted that as D1 is at the same time facing a trafficking in dangerous drugs charge, the court should consider ordering the sentences for the two charges, ie the 2^nd charge and the 6^th charge, to run totally concurrent to avoid possible unfairness where the defendant’s total sentence would exceed her sentence for trafficking all the drugs seized. 

24.  He handed to this court a letter from D1 as well as certain medical records of D1 from Correctional Services Department. 

Discussion

25.  Before sentencing, the court has carefully considered all that was advanced on behalf of D1, including the mitigation letter as well as the legal authorities cited.

1^st Charge

26.  Upon conviction of this charge on indictment, a person is liable to imprisonment for 2 years. 

27.  A deterrent sentence is called for for this offence as police officers need to be protected when they are carrying out their duties, and it is the responsibility of every citizen here in Hong Kong to co-operate with them in their lawful request or demand[1].

28.  Having regard to the facts of the case, no police officers were injured as a result although threats of violence were uttered, no evidence of incriminating evidence being destroyed while obstructing the police officers, alleged previous experience of D1 with people impersonating as police officers, the appropriate sentencing starting point for this charge would be 6 months’ imprisonment. 

29.  D1 has pleaded guilty and is entitled to full one-third sentencing discount.  She is therefore sentenced to 4 months’ imprisonment for this charge.

2^nd Charge

30.  A person upon conviction on indictment is liable to a fine of $5 million and to imprisonment for life. 

31.  Trafficking in dangerous drugs is a very serious offence.  In usual circumstances, it is well established that personal background and circumstances is not a valid mitigating factor.

32.  In this case, the drugs involved is 3.81 grammes of ICE, 0.84 gramme of cocaine, 2.04 grammes of cannabis in herbal form and traces of a solid containing cocaine.  ICE is obviously the most potent drug in this charge and it also represents 81.9% in quantity (ignoring the 2.04 grammes of cannabis in herbal form as well as the traces of cocaine).

33.  Trafficking the ICE in question alone would attract a sentencing starting point of 54 months and 9 days’ imprisonment.

34.  Trafficking the cocaine in question alone would attract a sentencing starting point of 27 months’ imprisonment.

35.  Had the cocaine in question been ICE, the sentencing starting point would become 58 months and 9 days’ imprisonment. 

36.  It would not be feasible to convert the sentence for trafficking 0.84 gramme of cocaine to that of ICE.  Also, it is absurd to use the total sentence for the two drugs on individual approach to arrive at the sentencing starting point. 

37.  Having regard to the notional sentencing starting point for the two drugs in question using the various tests, it appears that ratio test would be the most appropriate.  The same would be 55 months’ imprisonment.

38.  For trafficking up to 2,000 grammes of cannabis in herbal form, the sentence would be up to 16 months’ imprisonment.  Trafficking 2 grammes of cannabis in herbal form or the traces of a solid containing cocaine would not significantly alter the sentencing starting point.

39.  However, it is well established that if the accused trafficked in a variety of drugs, then it constitutes an aggravating feature in sentencing[2]. In this case, there are 3 types of drugs trafficked.  The sentencing starting point for this charge is therefore enhanced by 3 months to 58 months’ imprisonment.  

40.  D1 has pleaded guilty and is entitled to full one-third sentencing discount.  She is therefore sentenced to 38 months 20 days’ imprisonment.

41.  Whilst this court is willing to accept D1 is an abuser of drugs, this court is not ready to accept that a significant proportion of the drugs in question was for her own consumption.  However, in view of the fact that D1 is an abuser of drugs and that it might well be, though not reasonably, accepted that she had it to relieve her headache, the court is willing to further discount her sentence by 1 month and 20 days. 

42.  D1 is therefore sentenced to 37 months’ imprisonment for this charge.

6^th Charge

43.  On conviction upon indictment of this charge, a person is liable to a fine of $1 million and to imprisonment for 7 years, subject to section 54A of the Ordinance.

44.  In this case, the quantity of drugs is only traces of methamphetamine. This court considers that a 3 months’ imprisonment appropriate as the sentencing starting point for this offence.  She is therefore sentenced to 2 months’ imprisonment for this charge after plea.

Totality

45.  The nature of the 1^st charge offence is totally different from that of the dangerous-drug  -related offences (2^nd and 6^th charge). 

46.  Having regard to the overall culpability of D1 in this case, the court considers that a total sentence of 39 months’ imprisonment just and appropriate.  Accordingly, sentence of the 2^nd charge and the 6^th charge is to run totally concurrent with each other.  2 months of the sentence for the 1^st charge is to run consecutive to the sentence of the 2^nd and the 6^th charge, the rest to run concurrently. 

47.  D1 is sentenced to a total of 39 months’ imprisonment in this case.