HKSAR v. SO CHUN HO

DCCC 411/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 411 OF 2012

____________________

BETWEEN

____________________

____________________

Reasons for Sentence

____________________

Introduction

1.  D1 is convicted on his own plea of:

· the 1^st charge of trafficking in a dangerous drug, namely 114.42 grammes of ketamine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134; and

· the 3^rd charge of resisting a police officer in the due execution of his duty, contrary to section 36(b) of the Offences against the Person Ordinance, Cap.212.

Facts

2.  At about 10:17 pm on 25 February 2012 when PC 59006 (“PW1”) was patrolling at the 2^nd floor rear staircase of No.106 Tai Yuen Shopping Centre, Tai Yuen Estate, Tai Po, New Territories (the “Shopping Centre”), he noticed D1 and SO Yiu-fai (“D2”) walking on the ground floor towards the staircase. Outside the ground floor of the Shopping Centre, D2 took out a white plastic bag (the “Bag”) from the right front pocket of his trousers and passed it to D1. D1 then put the Bag into the left front pocket of his trousers.

3.  Finding the situation suspicious, PW1 approached D1 and D2, intercepted them and revealed his police identity at the staircase between the ground floor and the 1^st floor. D1 fled downstairs.

4.  Meanwhile, PC 2078 Chan Ting-nam Neil (“PW2”) revealed his police identity and asked D1 to stop. D1 ignored PW2 and continued to flee. PW2 managed to grasp D1’s right hand. D1 resisted and pushed away PW2’s hands. A struggle ensued and both D1 and PW2 fell onto the ground. In the course of the struggle, D1 tore open the Bag and spread part of the powder contained therein onto the ground (the “Powder”). Subsequently, PC 3974 arrived and helped PW2 subdue D1.

5.  Upon search, two mobile phones, HK$10,699, RMB150 and JPY10,000 were found from D1. The police also swept up and seized the Powder.

6.  The substance contained in the Bag (including the Powder) was found to be (i) 129.09 grammes of a powder containing 78.58 grammes of ketamine, and (ii) 76.08 grammes of a mixture of debris and powder containing 35.84 grammes of ketamine. The total weight of ketamine contained in the Bag was therefore 114.42 grammes.

7.  Under caution, D1 admitted that he wanted to escape and intended to sell the ketamine to earn some money.

8.  PW2 was found to have tenderness, redness and bruising at his chest. He was treated and discharged on the same day. He was granted sick leave from 25 to 27 February 2012.    

D1’s previous conviction record and antecedents

9.  D1 has two previous convictions, one of theft sentenced in December 2010 and one of possession of dangerous drugs sentenced on 16 March 2011. A probation order for 15 months was imposed on D1 for the offence of possession of dangerous drugs. I was informed that the probation order had just expired a few days ago.

10.  D1 was born in Hong Kong in April 1994 and is now 18 years old. At the time of offence, he was 17 years and 10 months old. He has received education up to Form 3 level.  

Mitigation

11.  In mitigation, Mr Woon informed this court that D1 was promised of free drugs to feed his drug habit on condition that he would deliver drugs to other people, hence the commission of the present offence. Mr Woon submitted that D1 was not the main culprit but played a secondary role.   

Sentence

12.  In Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, the Court of Appeal laid down the tariffs for trafficking in ketamine. For trafficking in a quantity of 50 to 300 grammes of ketamine, the sentence should be an imprisonment of between 6 to 9 years.

13.  In HKSAR v Nam Man-ngai DCCC 614/2009, the former District Judge M Yuen remarked at paragraph 16 of the judgment that trafficking of 120 grammes of ketamine would likely have attracted a term of 6 years and 10 months’ imprisonment.

14.  In HKSAR v Chan Siu-hang DCCC 1267/2008, Deputy District Judge Eddie Yip (as he then was) adopted a starting point of 7 years’ imprisonment for trafficking in 100.73 grammes of ketamine.

15.  I note that D1 was 17 years and 10 months old when he committed the present offences. However, the court has consistently held that for the offence of drug trafficking, young age carries little weight in mitigation unless it is a case of extreme youth. In the present case, D1 was not a person of extreme youth. Further, the submission that D1 was not the main culprit but only played a secondary role was not really a valid mitigating factor either – D1 admitted under caution that he was going to sell the ketamine to earn some money.

16.  Having considered the quantity of ketamine involved in this case and the aforesaid cases, I adopt a starting point of 6 years and 9 months’ imprisonment for the 1^st charge. In light of D1’s guilty plea, I give him one-third discount thus reducing the sentence to 4½ years’ imprisonment. There being no other valid mitigating features justifying any further reduction in sentence, D1 is sentenced to 4½ years’ imprisonment for the 1^st charge.

17.  Regarding the 3^rd charge, the Court of Appeal said in Secretary for Justice v Ko Wai Kit [2001] 3 HKLRD 15 that the sentence to be imposed must carry a deterrent element, for it is vital that those engaged to execute police duties are enabled properly to do so.

18.  In HKSAR v Ko Long Tsai HCMA 132/2007, the appellant pushed the officer away thus making the officer fall to the ground. There was no evidence to show that actual extent of injury sustained by the officer. Mrs Justice Barnes considered the starting point of 3 months’ imprisonment appropriate.

19.  In HKSAR v Chiu Kwok Wai [2008] 1 HKLRD 284, the applicant resisted arrest by pushing a police officer to the ground causing the police officer injuries requiring stitches and 7 days’ sick leave. The Court of Appeal considered the starting point of 4 months’ imprisonment not manifestly excessive.

20.  In the present case, PW2 had tenderness, redness and bruising at his chest. He was granted sick leave from 25 to 27 February 2012. I adopt a starting point of 3 months’ imprisonment for the 3^rd charge, give one-third discount to D1 for his guilty plea thus reducing the sentence for the 3^rd charge to 2 months’ imprisonment.

21.  Having considered the totality principle, I order the sentences for the 1^st and the 3^rd charges to run concurrently, thus making a total sentence of   4½ years’ imprisonment.