HKSAR v. TSE HO YIN

DCCC 71/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 71 OF 2017

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Reasons for Sentence

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1.  The defendant pleaded guilty to one charge of possession of a dangerous drug, one charge of criminal damage and one charge of resisting police officers in the execution of their duties.

Summary of facts

2.  At about 6:48pm on 18^th October 2016, the defendant was stopped by Police officers outside exit D of the MTR station at Kam Sheung Road in Kam Tin. He was found to be in possession of some cocaine. The defendant was duly arrested. Under caution, he claimed that he bought the drugs for $4,000 for his own consumption.

3.  The defendant was then brought back to Yuen Long Police station.

4.  At about 9:30pm on 19^th October 2016, while the defendant was still being detained at the Police station, he requested to make a phone call. The defendant was allowed to do so, using a Police telephone inside the Report Room of the station.

5.  As the defendant was spending a rather long time on the phone, the Duty Officer asked the defendant to finish for a few times. The defendant ignored him and carried on talking on the phone.

6.  When the Officer insisted that he stopped, the defendant lost his temper, shouted at the Officer about him not having the right to talk on the phone and then threw the phone’s handset against the desk, causing it to crack open. The replacement cost is $1,600.

7.  Another Police officer immediately declared arrest on the defendant for the offence of criminal damage.

8.  Seeing that the defendant was in an emotional state and being violent, another Police officer attempted to hold the defendant’s right hand a few times to try to control him but each time the defendant shrugged off the officer’s hand and stepped back.

9.  The officer who declared arrest earlier then attempted to hold on to the defendant’s left hand and warned him to calm down and not to resist. The defendant ignored the warning and continued to struggle in an emotional state.

10.  Three other Police officers came to assist and eventually subdued the defendant by lifting him up.

11.  Government Chemists confirmed that the substance found on the defendant was 11.9 grammes of a solid containing 10.7 grammes of cocaine. The street value of the cocaine was $19,875.

Previous convictions

12.  The defendant has 29 previous convictions from 18 court appearances. Of those 29 convictions, none were related to dangerous drugs.

13.  There is one previous conviction for Criminal Damage in February 2014, when he was imprisoned for 12 weeks and ordered to compensate the victim $600.

14.  Of the 29 convictions, 25 are related to dishonesty, with most of them being convictions for theft.

15.  The defendant’s last convictions were on 10^th July 2015, when he was sentenced to a total of 30 months’ imprisonment. He was last released from jail on 6^th August 2016, which was just two months and 12 days before he committed the present offences.

Mitigation

16.  The defendant is 30 years old. Counsel for the defendant pointed out that the defendant has no similar convictions in relation to charge 1 and 3.

17.  The defendant had written a letter, telling the court that he is remorseful.

18.  Ms Lau for the defendant reminded the court that the usual range of sentence for simple possession of dangerous drugs for self-consumption is that of between 12 to 18 months’ imprisonment.

19.  It was put forward in mitigation that the quantity of cocaine involved in the case is not very substantial, albeit not a small quantity either.

20.  I was told that prior to his detention, the defendant was a drug addict. He was however working as a transportation worker earning some $20,000 per month.

21.  Ms Lau pointed out that the drugs were in one big packet and not in individual packets, suggesting that there was no risk of re-distribution.

Sentences

Charge 1

22.  In the case of HKSAR v Mok Cho Tik, CACC 165/2000, the Court of Appeal said this:

“Sentencing is an art, and we emphasize 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 measure 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.”

23.  Pursuant to s.54A(1) of the Dangerous Drugs Ordinance, Cap.134, a Drug Addiction Treatment Centre report was ordered to be prepared on the defendant.

24.  It is the Medical Officer’s opinion that the defendant is not a drug dependant and is considered not suitable for admission. In fact, as referred to above, although the defendant has 29 previous convictions, none were related to dangerous drugs.

25.  The quantity of cocaine involved is 10.7 grammes. As conceded by counsel for the defendant, this is not a small quantity at all. This is the main governing factor when deciding on the starting point.

26.  Despite the fact that the defendant has no previous convictions relating to dangerous drugs, for this quantity of cocaine, I will adopt a starting point of 15 months’ imprisonment.

Latent risk

27.  In relation to the latent risk of re-distribution, I adopt the following 3 Steps referred to in the case of HKSAR v Wan Sheung-sum, CACC 438/1999:

“Step 1: The judge should normally determine a starting point of between one year to eighteen months’ imprisonment .

Step 2: The starting point is increased or enhanced to take account of the latent risk factor in order to arrive at a total sentence. This will reflect the risk to society of the drugs being redistributed and finding their way into other hands apart from the offender’s. The latent risk will be determined from all the circumstances in any particular case, including of course the quantity of drugs possessed and the personal circumstances of the offender.

Step 3: The total sentence is then adjusted to take account of the mitigating factors, such as a guilty plea.”

28.  I have already adopted an initial starting point. I now proceed to step 2.

29.  The defendant claimed, both under caution and through his counsel, that he bought the cocaine in this case for only $4,000. The estimated street price was, however, $19,875. The defendant, therefore, had been given an 80% discount on the cocaine.

30.  I find that I cannot agree with counsel’s submissions that the defendant was given an 80% discount because of the large quantity he had bought. It was just not such a large quantity, and an 80% discount is inherently improbable if based only on bulk buying.

31.  I also take into consideration the fact that, at the time of the offence (charge 1), the defendant had just been released from jail 2 months and 12 days ago. It is inherently improbable that he was still addicted to cocaine at the time of his release. According to the defendant himself in the DATC report, he would only smoke cocaine no more than once a month and would spend about $1,000 on drugs each time.

32.  If that is true, the defendant would be using ¼ of the 11.9 grammes of solid he had on him being ¼ of $4,000. It is inherently improbable that the defendant would require such a relatively large quantity of cocaine in such a short time after his release.

33.  I also cannot accept what was put forward by counsel as to the defendant’s income and employment status. As pointed out above, the defendant was just released from over 12 months of imprisonment. It is inherently improbable that he would be able to secure work earning $20,000 per month immediately after his release. I note, of course, that Ms Lau submitted that the defendant had used his savings to sustain his drug using habit.

34.  I find that, given the quantity of cocaine and the above observations, there is a real risk of re-distribution of the cocaine that was in the defendant’s possession.

35.  For that latent risk of re-distribution, I enhance the initial 15 months sentence by 9 months, taken the total to 24 months’ imprisonment.

Aggravating factor

36.  I find the fact that the defendant had committed the present offence just slightly more than 2 months after his release from a term of imprisonment an aggravating factor that warrants an enhancement of the sentence.

37.  For this enhancement factor, I will add on 3 months’ imprisonment to the enhanced starting point on charge 1, taking the sentence to that of 27 months’ imprisonment.

38.  The defendant had entered a timely guilty plea and is given the full one-third discount. The discounted sentence on charge 1 is 18 months’ imprisonment.

Charge 2

39.  In relation to the criminal damage charge, I take into consideration the following factors when arriving at the sentence.

40.  The defendant was inside a Police station and under detention for a criminal offence that he had committed. He was granted his request to make a phone call. Although I do not know exactly how long the call had gone on, it was definitely within the power of the Duty Officer to ask the defendant to finish. In telling the defendant to hang up, the officer did so verbally. The Duty Officer did not snatch the phone from the defendant or press the hang up button on the phone. Yet the defendant refused to comply and had the outburst.

41.  It is not the situation where the defendant was a first offender and was in the Police station for the first time and therefore would be understandably agitated. On the day he was arrested and brought back to Yuen Long Police Station, the defendant had had multiple encounters with police officers. This is even a second conviction for criminal damage. The defendant should have known better.

42.  I have taken into consideration the offer to compensate for the broken phone when deciding on the appropriate sentence.

43.  I find, nevertheless, that the circumstances of the commission of charge 2 requires an immediate custodial sentence. I will adopt a starting point of 3 months’ imprisonment. Which is discounted to 2 months’ imprisonment upon the defendant’s guilty plea.

44.  I also impose a compensation order against the defendant. He is to pay $1,530 to the owner of the broken phone (being the Government of the HKSAR) within 30 days. This order is made after discussion with the defendant’s counsel, who reassured the court that the time will be enough for the defendant’s friend or family to pay the money on his behalf.

Charge 3

45.  The circumstances of the commission of charge 3 is directly connected to the defendant’s commission of the second offence.

46.  Again, I take into consideration that the defendant was resisting police officers inside the Police station and while being detained for another criminal offence he had committed. The defendant showed a worrying disregard towards police officers.

47.  For this charge, I will adopt a starting point of 3 months’ imprisonment, discounted to 2 months’ imprisonment for the defendant’s guilty plea.

Totality

48.  In relation to charge 2 and 3, I will order that they be served wholly concurrently. This two-month sentence will, however, be served wholly consecutively to the sentence for charge 1.

49.  The total sentence for all 3 charges is therefore 20 months’ imprisonment.