A A
B B
DCCC 642/2013
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO 642 OF 2013 E
F F
--------------------------
G HKSAR G
v
H H
YEUN WING HUNG
I -------------------------- I
J J
Before: HH Judge A. Kwok
K Date: 13 September 2013 at 10.10 am K
Present: Ms Clara Ma, PP of the Department of Justice, for HKSAR
L L
Mr Fong Wai Kin, Raymond, instructed by Damien Shea &
M Co, assigned by the Director of Legal Aid, for the Defendant M
Offence: (1) Trafficking in a dangerous drug（販運危險藥物）
N N
(2) Assaulting a police officer in the execution of his duty
O O
（襲擊執行職責的警務人員）
P P
--------------------------
Q Q
Reasons for Sentence
R -------------------------- R
S S
1. The defendant appeared before me this morning facing two
T T
charges. The 1 charge is “Trafficking in a Dangerous Drug”, contrary to
st
U U
V V
- 2 -
A A
B B
section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The
C 2nd charge is “Assaulting a police officer in the execution of his duty”, C
contrary to section 63 of the Police Force Ordinance, Cap 232.
D D
E 2. The defendant pleaded guilty to the 1st charge while E
maintaining a plea of not guilty to the 2nd charge. After the defendant
F F
agreed the summary of facts, the prosecution informed the court that they
G were contented that upon conviction entered on the 1st charge, the 2nd G
charge would be left in the court’s file and not to be proceeded with
H H
without the leave of the court. In the end, the court convicted the defendant
I of the 1st charge accordingly after he fully accepted the summary of facts. I
J J
The facts
K K
3. This is a very simple stop and search case. According to the
L L
summary of facts which is admitted by the defendant, at about 9:59 pm on
M 15 April 2013, a police sergeant on plainclothes duty was patrolling at M
Tonkin Street near Lai Chi Kok Road, Sham Shui Po when he saw the
N N
defendant walking towards him. When they were a few feet away only, the
O defendant who was then speaking on his mobile phone said that “The coke O
had arrived”. Upon hearing this, the sergeant immediately revealed his
P P
police identity and intercepted the defendant. The defendant then used
Q both his hands to push the sergeant’s chest. The sergeant approached the Q
defendant again, grabbed his jacket and requested him to stop. The
R R
defendant then kicked at the sergeant’s left knee and then tried to flee.
S Eventually the sergeant caught up with the defendant and wrapped his arm S
around his waist. There was a struggle that followed. Eventually both of
T T
them fell onto the ground.
U U
V V
- 3 -
A A
B B
4. During the struggle, the defendant took out a plastic bag from
C a black plastic bag hidden in his underpants and put this plastic bag into his C
mouth trying to swallow it. The sergeant immediately stopped the
D D
defendant by pressing his nose with his left hand and requested the
E defendant to spit out the plastic bag. There was another struggle which E
followed. Eventually with the assistance of another police officer, the
F F
defendant was eventually subdued and arrested.
G G
5. The sergeant was sent to the hospital for medical treatment
H H
which confirmed that he has suffered minor abrasions and tenderness
I during the struggle. I
J J
6. Police found cash of $311.20 on the defendant’s body and
K also three mobile phones each with a SIM card on him. K
L L
7. The present charge involved 21.25 grammes of a solid
M containing 17.73 grammes of cocaine. The estimated street value of the M
cocaine is $21,738.
N N
O Criminal record and background of the defendant O
P P
8. The defendant had in the past been brought up in court on
Q three different occasions, all in 2006, involving a single charge of Q
“common assault”, a single charge of “theft”, three “robbery” charges as
R R
well as one “burglary” charge. He was sentenced first to the Rehabilitation
S Centre and later to the Training Centre. I was told that the defendant was S
released after two years in the Training Centre.
T T
U U
V V
- 4 -
A A
B B
9. Defendant is only aged 23 and he is single. He had been
C working as an assistant chef for the last five years earning monthly income C
of $16,000. He lived with his grandmother. His parents were divorced
D D
when he was very young and he was brought up by his grandmother and
E paternal aunt. He only had a Form 2 education level and he had no drug E
addiction criminal record but I was told that he became involved in drugs
F F
since February 2012.
G G
10. In mitigation, Mr Fong, his counsel, informed the court that
H H
although the defendant did not have any drug-related criminal record,
I unfortunately through the introduction of his colleague at work, he became I
addicted to cocaine since February 2012. He has spent a lot of his income
J J
on drugs. It used to be that he had contributed about $6,000 a month to his
K grandmother for household expenses and maintenance. After he became K
addicted to cocaine, the dosage has increased and by the time when he
L L
committed this offence he had spent up to $8,000 a month on those drugs.
M M
11. In relation to the present quantity of the drugs, Mr Fong
N N
informed the court that the defendant actually pooled funds together with
O his colleagues to buy the drugs from a source which he believed was O
cheaper than otherwise he would have obtained. Mr Fong clarified with
P P
his client and told the court that all along they have been buying drugs from
Q this drug dealer chiefly because he could offer drugs at a much lower Q
market price. In these occasions, half of the drugs involved, according to
R R
Mr Fong, was bought by the defendant while the other half was bought by
S his colleague. In return, his colleague also promised to give about $2,000 S
as a reward for his carrying the drugs and for the risk associated. In the
T T
end, Mr Fong also submitted a letter of mitigation to the court. The letter
U U
V V
- 5 -
A A
B B
was written by the defendant himself informing the court that he was so
C remorseful and reminiscent of the days when he was drug-free. He has C
promised the court to turn a new leaf and asked the court to be as lenient as
D D
possible. Mr Fong told the court that his client knew full well that he was
E going to face a lengthy sentence but taking into account the defendant’s E
guilty plea and the mitigation that has put forward, he asked the court to
F F
pass a lenient sentence.
G G
Sentencing considerations
H H
I 12. Trafficking in dangerous drugs is of course a very serious I
offence and anyone who is involved in this criminal activity would expect
J J
to be dealt with severely by the court. The defendant pleaded guilty which
K is of course the most important mitigation. In addition, Mr Fong also K
informed the court that part of the drugs was actually for his
L L
self-consumption. Of course when I was called upon to act on this
M mitigating factor, I have to take into account the fact that the defendant had M
no previous offence in relation to dangerous drugs, but on the other hand, I
N N
also look at the antecedent statement and noticed that after he was arrested,
O he already at the first opportunity informed the police that he had been O
addicted to cocaine since February 2012. That is something which is
P P
consistent with what he told his counsel and what he has told the court
Q today. In the end, I am prepared to accept what he said that the reason why Q
he involved in the present offence was because he was also consuming
R R
cocaine.
S S
T T
U U
V V
- 6 -
A A
B B
13. In the case of Chow Chun Sang [2012] 2 HKLRD 1121, the
C Court of Appeal has said that self-consumption of all or part of the drugs C
usually attracted a discount between 10 to 25 per cent of the basic starting
D D
point whereas the exact discount would depend on the nature and the
E quantity of drugs and the proportion of the drug intended for self use and E
whether the offence was organised, premeditated and for financial gain and
F F
lastly, of course, also taking into the account of the defendant’s
G background and the record. G
H H
14. After considering carefully what Mr Fong had informed the
I court about the defendant’s background, I am prepared to reduce the I
sentence by the region of about 13 per cent.
J J
K 15. For trafficking in cocaine, the Court of Appeal has already K
said that the tariff for trafficking heroin applies. Applying the guideline for
L L
heroin in R v Lau Tak Ming & Others [1990] 2 HKLR 370, for the present
M quantity, the proper starting point is 5 years and 6 months which is 66 M
months. As I have said, I am prepared to reduce by about 13 per cent from
N N
the basic starting point. I would therefore reduce the starting point by 9
O months to 57 months. O
P P
16. The defendant pleaded guilty and that is the only mitigating
Q factor for which he would enjoy a full one-third discount. In the end, the Q
defendant would receive a sentence of 38 months’ imprisonment.
R R
S S
T T
( A. Kwok )
District Judge
U U
V V
A A
B B
DCCC 642/2013
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO 642 OF 2013 E
F F
--------------------------
G HKSAR G
v
H H
YEUN WING HUNG
I -------------------------- I
J J
Before: HH Judge A. Kwok
K Date: 13 September 2013 at 10.10 am K
Present: Ms Clara Ma, PP of the Department of Justice, for HKSAR
L L
Mr Fong Wai Kin, Raymond, instructed by Damien Shea &
M Co, assigned by the Director of Legal Aid, for the Defendant M
Offence: (1) Trafficking in a dangerous drug（販運危險藥物）
N N
(2) Assaulting a police officer in the execution of his duty
O O
（襲擊執行職責的警務人員）
P P
--------------------------
Q Q
Reasons for Sentence
R -------------------------- R
S S
1. The defendant appeared before me this morning facing two
T T
charges. The 1 charge is “Trafficking in a Dangerous Drug”, contrary to
st
U U
V V
- 2 -
A A
B B
section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The
C 2nd charge is “Assaulting a police officer in the execution of his duty”, C
contrary to section 63 of the Police Force Ordinance, Cap 232.
D D
E 2. The defendant pleaded guilty to the 1st charge while E
maintaining a plea of not guilty to the 2nd charge. After the defendant
F F
agreed the summary of facts, the prosecution informed the court that they
G were contented that upon conviction entered on the 1st charge, the 2nd G
charge would be left in the court’s file and not to be proceeded with
H H
without the leave of the court. In the end, the court convicted the defendant
I of the 1st charge accordingly after he fully accepted the summary of facts. I
J J
The facts
K K
3. This is a very simple stop and search case. According to the
L L
summary of facts which is admitted by the defendant, at about 9:59 pm on
M 15 April 2013, a police sergeant on plainclothes duty was patrolling at M
Tonkin Street near Lai Chi Kok Road, Sham Shui Po when he saw the
N N
defendant walking towards him. When they were a few feet away only, the
O defendant who was then speaking on his mobile phone said that “The coke O
had arrived”. Upon hearing this, the sergeant immediately revealed his
P P
police identity and intercepted the defendant. The defendant then used
Q both his hands to push the sergeant’s chest. The sergeant approached the Q
defendant again, grabbed his jacket and requested him to stop. The
R R
defendant then kicked at the sergeant’s left knee and then tried to flee.
S Eventually the sergeant caught up with the defendant and wrapped his arm S
around his waist. There was a struggle that followed. Eventually both of
T T
them fell onto the ground.
U U
V V
- 3 -
A A
B B
4. During the struggle, the defendant took out a plastic bag from
C a black plastic bag hidden in his underpants and put this plastic bag into his C
mouth trying to swallow it. The sergeant immediately stopped the
D D
defendant by pressing his nose with his left hand and requested the
E defendant to spit out the plastic bag. There was another struggle which E
followed. Eventually with the assistance of another police officer, the
F F
defendant was eventually subdued and arrested.
G G
5. The sergeant was sent to the hospital for medical treatment
H H
which confirmed that he has suffered minor abrasions and tenderness
I during the struggle. I
J J
6. Police found cash of $311.20 on the defendant’s body and
K also three mobile phones each with a SIM card on him. K
L L
7. The present charge involved 21.25 grammes of a solid
M containing 17.73 grammes of cocaine. The estimated street value of the M
cocaine is $21,738.
N N
O Criminal record and background of the defendant O
P P
8. The defendant had in the past been brought up in court on
Q three different occasions, all in 2006, involving a single charge of Q
“common assault”, a single charge of “theft”, three “robbery” charges as
R R
well as one “burglary” charge. He was sentenced first to the Rehabilitation
S Centre and later to the Training Centre. I was told that the defendant was S
released after two years in the Training Centre.
T T
U U
V V
- 4 -
A A
B B
9. Defendant is only aged 23 and he is single. He had been
C working as an assistant chef for the last five years earning monthly income C
of $16,000. He lived with his grandmother. His parents were divorced
D D
when he was very young and he was brought up by his grandmother and
E paternal aunt. He only had a Form 2 education level and he had no drug E
addiction criminal record but I was told that he became involved in drugs
F F
since February 2012.
G G
10. In mitigation, Mr Fong, his counsel, informed the court that
H H
although the defendant did not have any drug-related criminal record,
I unfortunately through the introduction of his colleague at work, he became I
addicted to cocaine since February 2012. He has spent a lot of his income
J J
on drugs. It used to be that he had contributed about $6,000 a month to his
K grandmother for household expenses and maintenance. After he became K
addicted to cocaine, the dosage has increased and by the time when he
L L
committed this offence he had spent up to $8,000 a month on those drugs.
M M
11. In relation to the present quantity of the drugs, Mr Fong
N N
informed the court that the defendant actually pooled funds together with
O his colleagues to buy the drugs from a source which he believed was O
cheaper than otherwise he would have obtained. Mr Fong clarified with
P P
his client and told the court that all along they have been buying drugs from
Q this drug dealer chiefly because he could offer drugs at a much lower Q
market price. In these occasions, half of the drugs involved, according to
R R
Mr Fong, was bought by the defendant while the other half was bought by
S his colleague. In return, his colleague also promised to give about $2,000 S
as a reward for his carrying the drugs and for the risk associated. In the
T T
end, Mr Fong also submitted a letter of mitigation to the court. The letter
U U
V V
- 5 -
A A
B B
was written by the defendant himself informing the court that he was so
C remorseful and reminiscent of the days when he was drug-free. He has C
promised the court to turn a new leaf and asked the court to be as lenient as
D D
possible. Mr Fong told the court that his client knew full well that he was
E going to face a lengthy sentence but taking into account the defendant’s E
guilty plea and the mitigation that has put forward, he asked the court to
F F
pass a lenient sentence.
G G
Sentencing considerations
H H
I 12. Trafficking in dangerous drugs is of course a very serious I
offence and anyone who is involved in this criminal activity would expect
J J
to be dealt with severely by the court. The defendant pleaded guilty which
K is of course the most important mitigation. In addition, Mr Fong also K
informed the court that part of the drugs was actually for his
L L
self-consumption. Of course when I was called upon to act on this
M mitigating factor, I have to take into account the fact that the defendant had M
no previous offence in relation to dangerous drugs, but on the other hand, I
N N
also look at the antecedent statement and noticed that after he was arrested,
O he already at the first opportunity informed the police that he had been O
addicted to cocaine since February 2012. That is something which is
P P
consistent with what he told his counsel and what he has told the court
Q today. In the end, I am prepared to accept what he said that the reason why Q
he involved in the present offence was because he was also consuming
R R
cocaine.
S S
T T
U U
V V
- 6 -
A A
B B
13. In the case of Chow Chun Sang [2012] 2 HKLRD 1121, the
C Court of Appeal has said that self-consumption of all or part of the drugs C
usually attracted a discount between 10 to 25 per cent of the basic starting
D D
point whereas the exact discount would depend on the nature and the
E quantity of drugs and the proportion of the drug intended for self use and E
whether the offence was organised, premeditated and for financial gain and
F F
lastly, of course, also taking into the account of the defendant’s
G background and the record. G
H H
14. After considering carefully what Mr Fong had informed the
I court about the defendant’s background, I am prepared to reduce the I
sentence by the region of about 13 per cent.
J J
K 15. For trafficking in cocaine, the Court of Appeal has already K
said that the tariff for trafficking heroin applies. Applying the guideline for
L L
heroin in R v Lau Tak Ming & Others [1990] 2 HKLR 370, for the present
M quantity, the proper starting point is 5 years and 6 months which is 66 M
months. As I have said, I am prepared to reduce by about 13 per cent from
N N
the basic starting point. I would therefore reduce the starting point by 9
O months to 57 months. O
P P
16. The defendant pleaded guilty and that is the only mitigating
Q factor for which he would enjoy a full one-third discount. In the end, the Q
defendant would receive a sentence of 38 months’ imprisonment.
R R
S S
T T
( A. Kwok )
District Judge
U U
V V