HKSAR v. SUEN HUNG

DCCC 837/2023

[2025] HKDC 452

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 837 OF 2023

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REASONS FOR SENTENCE

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The defendant pleaded guilty to a charge of "Trafficking in a dangerous drug" (Charge 1)  and a charge of "Resisting police officers in the due execution of their duty" (Charge 2).

Summary of Facts

2.  About 12:25 a.m. on 6 April 2023, police officers in plain clothes noticed a private car UD3950 ("the Car")  parked at the junction between Tak Fuk Road and Shun Tat Street in Tuen Mun.

3.  The defendant was in the driver's seat of the Car all by himself.  DPC 18133 (PW2)  knocked on the window, declared his police identity and showed his warrant card.  He asked the defendant to turn off the engine and alight from the Car. Upon search, a key to the Car was found in the defendant's right front trouser pocket.

4.  Police officers searched the Car as well.  The following items were found in a space underneath the steering wheel :-

(i)  inside a red packet, 1 large transparent resealable plastic bag containing 9 plastic bags which contained a total of 2.70 grammes of a solid containing 2.31 grammes of cocaine;

(ii)  inside a cigarette box, 1 large transparent resealable plastic bag containing 20 plastic bags which contained a total of 6.06 grammes of a solid containing 4.94 grammes of cocaine;

(iii)  inside another cigarette box, 1 large transparent resealable plastic bag containing 20 plastic bags which contained a total of 6.02 grammes of a solid containing 5.09 grammes of cocaine; and 1 large transparent resealable plastic bag containing 20 plastic bags which contained a total of 5.98 grammes of a solid containing 4.92 grammes of cocaine; and

(iv)  2 mobile phones.

5.  The defendant was arrested for "drug trafficking".  When DPC 13102 (PW3)  was about to handcuff the defendant, he suddenly pushed away DPC 27865 (PW1)  and PW2 attempting to flee.  All 3 officers tried to subdue the defendant and ordered him not to resist.  The defendant kept struggling vigorously.  During the struggle, PW1 fell down with the defendant on the ground.  The defendant kept resisting and struggling against the officers.  They continuously asked the defendant to calm down and stop struggling.  After 1 to 2 minutes, PW3 managed to handcuff the defendant.  The officers helped the defendant to stand up.  He was then arrested for "Resisting a police officer".

6.  PW1 and PW2 were sent to Tuen Mun Hospital for treatment in the same evening.  PW1 sustained a linear abrasion of 2 cm over his right palm and two 0.5 cm abrasion wounds over the dorsal aspect of his left hand.  PW2 sustained abrasions over the dorsal side of his right wrist and over the lateral malleolus of his right ankle.

Mitigation & Sentence

7.  The defendant is 35 and had 4 conviction records, which included 1 "simple possession" offence and 1 "trafficking" offence.  Defence counsel Mr. Chiu informed me that the defendant is divorced.  He has a son (aged 16)  who resides with his ex-wife.  The defendant also has 2 daughters (aged 8 and 2)  with his girlfriend; he and they reside together.  The defendant was a part-time driver earning about $25,000 per month.

8.  In mitigation, Mr. Chiu submitted that the defendant's income was unstable.  Owing financial pressure and bad influence of his friends, the defendant committed the present "trafficking" offence.  Mr. Chiu also submitted that as revealed in his urine test report (sample taken on 9 April 2023; 3 days after his arrest), the defendant was a cocaine user.  Mr. Chiu elaborated that the defendant had intended to keep whatever that was leftover for self-consumption.  Regarding Charge 2, Mr. Chiu submitted that the injuries sustained by the 2 police officers were not serious.

9.  Drug abuse has been a long-term problem in our society.  A clear message must be conveyed to the general public that "drug trafficking" is a serious crime (be it in the capacity of a seller, courier or storekeeper)  and that drug traffickers (even fresh offenders)  would most certainly be punished by long-term imprisonment.  Also, being in financial difficulty (however serious)  is no mitigating factor for committing a crime.

10.  The Court of Appeal has laid down clear sentencing guidelines for trafficking in cocaine (see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 and The Queen v Lau Tak-ming & others [1990] 2 HKLR 370).  For 10 to 50 grammes, the sentence ranges from 5 to 8 years' imprisonment.

11.  Regarding the defendant's claim for self-consumption, I have reminded myself of the relevant sentencing principles[1].  Mr. Chiu submitted that the defendant had intended to consume whatever that was leftover from his sale, i.e. roughly 5 to 6 grammes.  Ms. Li for the prosecution objected to the defendant's claim for lack of evidential basis.

12.  In Charge 1, the defendant trafficked in 17.26 grammes of cocaine.  Applying a strict arithmetical approach, the appropriate starting point is 5 years and 7 months.  For ease of calculation, I adopt 5 years and 6 months as the starting point.  The defendant has 1 previous conviction of "simple possession" but has never been sentenced to a Drug Addiction Treatment Centre.  His urine test report showed cocaine positive.  I accept that the defendant could be a cocaine user and that a portion of the cocaine found could be for his own consumption.  On the other hand, I consider 5 to 6 grammes to be a quantity randomly picked by the defendant.  Other than his mere assertion, there is insufficient evidence to support his claim for the quantity intended for self-consumption.  I am prepared to grant the defendant a nominal discount of 3 months for self-consumption, reducing the global starting point to 63 months[2]. With the timely guilty plea, the sentence is reduced to 42 months.   Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 42 months' imprisonment for this charge.

13.  For Charge 2, I accept that the level of resistance involved was not high.  I adopt a starting point of 9 weeks' imprisonment[3].  With the timely guilty plea, I sentence the defendant to 6 weeks' imprisonment for this charge.

14.  Charges 1 and 2 are separate and distinct.  Had the defendant cooperated with the police officers, Charge 2 could have been completely avoided.  Notwithstanding the totality principle, I order the sentence in Charge 2 to run consecutive to Charge 1.  In other words, the total prison term for both charges is 43 months and 2 weeks.