HKSAR v. HUNG HIN MING

DCCC 1093/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1093 OF 2016

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REASONS FOR SENTENCE

1.  Hung Hin Ming you have pleaded guilty to one joint charge of trafficking in 35.60 grammes of a solid containing 24.41 grammes of cocaine with Li Wing Hon (“Li”)[1], contrary to section 4 of the Dangerous Drugs Ordinance[2] and one charge of failing to surrender to custody without reasonable cause, contrary to section 9L of the Criminal Procedure Ordinance[3].

2.  In summary in the evening of 20 September last year the police intercepted you and Li near the taxi stand outside Mei Fung House in Tai Wai.  The police found two transparent plastic bags containing the cocaine in a paper box held by Li.

3.  Under caution and in a subsequent video interview you admitted that you asked Li to deliver the cocaine to your customer; the cocaine would be sold for $30,000 and you would give Li $2,000 for delivering the cocaine.

Failing to surrender

4.  You failed to appear in the District Court on 13 December 2016 for plea.  You were re-arrested almost four months later on 5 April this year.  Under caution you told the police that your girlfriend was ill and you needed to look after her therefore you did not attend court. 

Mitigation

5.  In passing sentence, I have carefully considered everything said on your behalf by Miss Lai, together with your mitigation letter and the letter from Father Wotherspoon.

Sentence

6.  The courts have equated for sentencing purposes cocaine with heroin[4].  In R v Lau Tak Ming[5]the Court of Appeal laid down guidelines for trafficking in heroin.  The court said that the sentence upon conviction after trial where the quantity of narcotic is between 10 and 50 grammes is between 5 and 8 years’ imprisonment. 

7.  When sentencing Li I was satisfied the proper starting point after trial for 24.41 grammes of cocaine was 6 years imprisonment.  I adopt the same starting point.

8.  You have two previous convictions for trafficking in drugs for which you were sentenced by the District Court on 8 May 2013 to concurrent sentences of 24 months and 44 months whereas Li had no previous convictions for trafficking in drugs. 

9.  Having read the summary of facts admitted by you in that case I note the two offences were committed at the same time and not two separate acts of trafficking on different days.  In the circumstances I do not enhance the starting point by reason of your previous offending. 

Timely plea

10.  Unlike D1 who pleaded guilty at the first available opportunity, your plea is not a timely plea.  You failed to attend court in December last year.  A defendant who absconds can expect to be given a discount of less than one-third when he pleads guilty and that he will be additionally punished for the offence of failing to surrender to court[6].

11.  You were re-arrested almost four months later on 5 April this year having been arrested the day before in connection with another drug offence for which on 18 September 2017 you were sentenced in the Kowloon City Magistracy to 5 months’ imprisonment for inhaling a dangerous drug[7].

12.  You appeared in the District Court on 11 April when the case was adjourned to 23 May for you to apply for legal aid.  On that day you indicated your plea of guilty to both charges and a date for plea and sentence was fixed for 23 August.  

13.  As a result of your absconding there has been three additional court hearings on 11 April, 23 May and 24 August[8]. The hearing today and on 25 August arose from your mitigation and not by reason of your absconding.  I am satisfied a discount of 25% is appropriate thereby reducing the sentence to 4 years and 6 months imprisonment[9].

Failing to surrender

14.  Miss Lai confirms the reason you failed to attend court was that your girlfriend was ill and you needed to look after her.  Miss Lai explains that your girlfriend has heart disease and one of the reasons you became involved in trafficking drugs was to earn money for the medical expenses of your girlfriend.  You told the police you were afraid you would be incarcerated for failing to attend the District Court and therefore did not surrender to the police.    

15.  Taking into account you did not surrender; you were re-arrested almost four months after failing to attend court and that when you did appear in the District Court you indicated your pleas of guilty without the need to fix a trial date, I am satisfied a starting point of 3 months’ imprisonment is appropriate.  Giving you full credit for your plea of guilty reduces the sentence to 2 months’ imprisonment.

Totality

16.  Failing to surrender to court is a wholly distinct and separate offence for which a consecutive sentence is appropriate subject to consideration of totality of sentence[10]. I am satisfied a wholly consecutive sentence is appropriate making a total sentence of 4 years and 8 months’ imprisonment, which I am satisfied properly reflects your criminality on the two charges.

17.  As noted earlier you were sentenced to 5 months’ imprisonment on 18 September for the offence of inhaling a dangerous drug.  I am told you have already served that sentence.  I have had the opportunity of reading the facts admitted by you in that case which show the offence was committed on the day you were arrested, namely 4 April.  

18.  The offence was therefore committed whilst you were on bail for the present offence (albeit having failed to attend court).  The handwritten reasons for sentence of the magistrate do not however say whether this aggravating feature was taken into account in passing sentence.  I am nevertheless satisfied that the two offences being separated by over six months that a wholly consecutive sentence would have been imposed if you had been sentenced at the same time. 

Humanitarian act

19.  In his letter Father Wotherspoon informed the court that together with two other prisoners you assisted a prison officer who fell unconscious. 

20.  Before passing sentence I required more information about what happened and what help was given by each prisoner in order to properly assess what weight was to be attached to this mitigation.  In addition, I requested information about whether the other two prisoners had appeared in court and relied on the letter to see how the court sentenced those prisoners.   I also referred Ms Lai to a number of cases to show the approach taken by the court to humanitarian acts. 

21.  Sentence was therefore adjourned for Miss Lai to seek further information.  Miss Lai has submitted further written mitigation.  Attached is a letter from the Correctional Services Department stating that you did not have any role in the incident.  Miss Lai submits that you stayed calm and would have unreservedly rendered assistance if necessary[11].

22.  Miss Lai tells the court that you told her that Kwok Ching Keung was given a reduction of 12 months.  This is incorrect.  Kwok was sentenced on 9 October 2017 and received a reduction of 1 month[12].

23.  After taking your further instructions Miss Lai informs the court that you now withdraw this mitigation. 

24.  In my view unlike Kwok, who you say actually helped the prison officer, you did not render any assistance to the prison officer.  Prisoners who are of good behaviour are usually released from their sentences early.  I am satisfied there are no grounds on which to reduce your sentence. 

25.  You are convicted and sentenced as follows:

Charge 1 – 4 years and 6 months’ imprisonment; and

Charge 2 – 2 months’ imprisonment consecutive to charge 1.

The total sentence to be served by you is 4 years and 8 months’ imprisonment.