A A
DCCC862/2008
B B
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C CRIMINAL CASE NO. 862 OF 2008 C
D
---------------------- D
HKSAR
E E
v.
F Fung Nang Kei (D2) F
G ---------------------- G
Before: H H Judge S. D’Almada Remedios
H Date: 23 January 2009 at 3.10 pm H
Present: Ms Rosa Lo, PP of the Department of Justice, for HKSAR
Mr Simon Yip, instructed by Francis Kong & Co.,
I assigned by the Legal Aid Department, for the 2nd I
Defendant
J Offence: Possession of a dangerous drug, etc. (管有危險藥物等罪項) J
Reasons for Sentence
K K
1. Defendant, you have pleaded guilty to the 1st charge
L of possession of a dangerous drug, contrary to section 8(1)(a) L
and (2) of the Dangerous Drugs Ordinance.
M M
2. You admitted that on the 28th day of July 2008, in a
N N
private car parked outside Brilliant Garden, Castle Peak Road,
O Tuen Mun, you had in your possession a dangerous drug with two O
other co-accused defendants, 10.11 grammes of a powder
P containing 8.15 grammes of ketamine. P
Q 3. In respect of the 2nd charge of attempted possession Q
of arms and ammunition without a licence, contrary to section
R R
13(1) and (2) of the Firearms and Ammunition Ordinance and
section 159G of the Crimes Ordinance, you pleaded not guilty. I
S S
found you guilty, after trial, of attempting to have in your
T possession a quantity of arms and ammunition, namely, one T
revolver and six bullets, without a licence, on the 28th day of
U U
CRT33/23.1.2009/GTT 1 DCCC862/2008/Sentence
V V
A A
July 2008, at Room 120A of Tuen Mun Police Station, Tuen Mun. I
am therefore here to sentence you on two separate charges.
B B
C 4. In respect of the possession of dangerous drug charge, C
you were charged with two co-accused. They have already pleaded
D guilty and were sentenced to 120 hours of Community Service D
Order before another judge.
E E
5. On 28 July 2008 police officers had set up a road
F F
block outside Brilliant Garden in Castle Peak Road to carry out
G routine checking of vehicles. At about 10.52 pm, an officer G
intercepted a vehicle in which you were a passenger on board and
H the other two accused were, respectively, a driver and also a H
passenger.
I I
6. As the officer found all three of you acting
J J
furtively, he directed you to get off the vehicle for a body
K
search. Nothing suspicious was found. Another officer then K
performed a search on the vehicle and found the dangerous drugs
L hidden at a space between the handbrake and the front passenger L
seat of the vehicle. At 11.10 pm, the officer arrested you for
M possession of dangerous drugs and cautioned you. Under caution, M
you said that you had gathered money with the other two friends
N N
- that is, the two co-accused - to buy the “K Chai” for your own
consumption.
O O
P 7. The 2nd charge concerns an offence that happened when P
you were brought back to the Tuen Mun Police Station as a result
Q of the possession of dangerous drugs in the 1st charge. At about Q
11.34 pm, you three arrested persons were brought back to the
R R
Tuen Mun Police Station for further investigation. You were
brought inside a room inside the report room of Tuen Mun Police
S S
Station for inquiries and documentation. There were you three in
T the report room, together with an officer doing the T
documentation and another officer standing guard.
U U
CRT33/23.1.2009/GTT 2 DCCC862/2008/Sentence
V V
A A
8. The officer doing the documentation in the trial was
PW1, PC34628. The two co-accused were sitting on chairs and you
B B
were standing up. Whilst the officer, PW1, was doing some
C documentation at about 11.44, you suddenly dashed towards the C
right side of the officer and both of your hands grabbed the
D handle of his police revolver, which was in a holster around his D
waist. You tried to pull it out from the holster. The officer
E E
immediately held on to the revolver and pushed you away. The
other officer joined in to assist that officer and finally
F F
subdued you on the floor.
G G
9. After you were subdued on the floor you shouted, “Give
H me the gun. I want to die.” Another officer arrested you for H
attempted robbery and under caution you said, “Give me the gun.
I I
I want to die. Tell my mum for me I could not repay the credit
card payment of $100,000-odd.” No one was injured during the
J J
incident and no damage was caused to the revolver and the
K
holster of PW1 or to any other property. You took part in a K
video recorded interview on 29 July. That interview was given
L voluntarily. The police revolver was loaded at that time with L
six bullets.
M M
10. Much of the evidence in the trial of Charge 2 was
N N
admitted. The only issue at that time before me was whether you
had the specific intent. It was argued by your counsel, Mr Simon
O O
Yip, that you did not have the specific intent at the
P time because you were under the influence of drugs. Having heard P
all the evidence and having given my reasons for verdict, I
Q found you did have the necessary intent to possess the firearms Q
and the ammunition.
R R
11. Prior to sentencing you today, I had called for a
S S
probation officer’s report and a Community Service Order report.
T I had indicated to you that this was no indication of what T
sentence I shall pass upon you, but that all sentencing options
U would be open to me. Those reports are now before me. Mr Yip, U
CRT33/23.1.2009/GTT 3 DCCC862/2008/Sentence
V V
A A
your counsel, has made mitigation on your behalf fully, and I
have taken into account all that he has had to say.
B B
C 12. You are 23 years of age, single and have one previous C
conviction for assault occasioning actual bodily harm, for which
D you were sentenced to a Rehabilitation Centre. That conviction D
is now regarded as spent. You were sentenced when you were
E E
19 years of age, some four years ago. In the report itself, the
probation officer states that it appears that you are not in
F F
need of probation supervision, as you had received disciplinary
G training before and you, having been a grown-up with a stable G
job previously and have sufficient awareness of the price of
H violating the law. Mr Yip has said that probation is not H
recommended, not because of any bad character but because you
I I
had previously received disciplinary training; that you have
learnt a hard lesson and that you are willing to turn anew.
J J
K
13. In respect of a Community Service Order, again, the K
probation officer recognises that you are willing to make
L reparation for your wrongdoings by performing unpaid service and L
showed regret for your involvement in the present offences.
M However, considering your previous criminal record and your M
being convicted on this occasion of two offences, a Community
N N
Service Order is not recommended. Should I consider to grant a
lenient sentence on you, she recommends a Community Service
O O
Order of between 200 to 240 hours.
P P
14. I am informed by Mr Yip that principally the reason
Q for you committing the 1st offence of possession of dangerous Q
drugs was because of the anxiety and stress that you were facing
R R
as a result of your excessive spending habits and having to
repay your debts. You therefore took ketamine to relieve that
S S
stress. However, that rebounded on you in that that caused the
T commission of the 2nd offence. T
U U
CRT33/23.1.2009/GTT 4 DCCC862/2008/Sentence
V V
A A
15. All along, throughout the time you were released from
the Rehabilitation Centre, Mr Yip submits that you have been
B B
gainfully employed, and even prior to you receiving
C rehabilitation at the Rehabilitation Centre you had had gainful C
employment. You had been a printing worker at a boat factory
D just in December, and I am informed that you stopped working D
there in December as you were not sure what would be the result
E E
of these offences and you did not want to cause a problem to the
factory. However, I am informed that should you not be
F F
incarcerated your job will still be there waiting for you and
G you will be able to return to the factory to work if you have a G
chance to do so.
H H
16. No doubt both offences are serious, but more
I I
particularly the second offence of attempted possession of the
arms and ammunitions. That is reflected in that that is also an
J J
excepted offence.
K K
17. I found that the reason for you committing this
L offence was as a result of an emotional outburst that had L
overcome you suddenly and without reason in the report room.
M Prior to that, upon your arrest up until that moment, you were M
co-operative with the police, were calm and coherent. As I
N N
mentioned, suddenly, without reason, you lost control of
yourself and out of an outburst of emotion you attempted to grab
O O
the officer’s revolver saying that you wanted to kill yourself.
P Again, Mr Yip has boiled all of this down to the fact that the P
debt that you had in incurred was the sole and principal reason
Q for all this stress and anxiety. Mr Yip submits that although Q
you pleaded not guilty to that 2nd charge, in fact all the facts
R R
were admitted in law and the only issue was the question of
intent.
S S
T 18. This is not an easy case for which to sentence you. Mr T
Yip has made very persuasive mitigation on your behalf and given
U the fact that you have learnt a good lesson and have shown U
CRT33/23.1.2009/GTT 5 DCCC862/2008/Sentence
V V
A A
remorse; that your family members support you; that you have
employment still open to you; and that you have worked out a
B B
repayment plan, I am prepared to give you this last chance and
C grant you leniency and sentence you to a Community Service C
Order.
D D
19. It appears certain, which I accept, that from the
E E
contents of the report you do not have a bad personal character.
I am informed that for the offence of assault occasioning actual
F F
bodily harm, you were sentenced to a Rehabilitation Centre
G because that was a gang fight. That was when you were a G
teenager. I would like to now ask you, defendant, if you are
H willing to undertake the order for a Community Service Order. H
I I
DEFENDANT: Yes.
J J
20. I sentence you, then, for both charges to 240 hours of
K
community service. Those sentences shall run concurrent to each K
other. That is, of course, the maximum number of hours you can
L serve. L
M M
N N
O O
(S. D’Almada Remedios)
P District Judge P
Q Q
R R
S S
T T
U U
CRT33/23.1.2009/GTT 6 DCCC862/2008/Sentence
V V
A A
DCCC862/2008
B B
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C CRIMINAL CASE NO. 862 OF 2008 C
D
---------------------- D
HKSAR
E E
v.
F Fung Nang Kei (D2) F
G ---------------------- G
Before: H H Judge S. D’Almada Remedios
H Date: 23 January 2009 at 3.10 pm H
Present: Ms Rosa Lo, PP of the Department of Justice, for HKSAR
Mr Simon Yip, instructed by Francis Kong & Co.,
I assigned by the Legal Aid Department, for the 2nd I
Defendant
J Offence: Possession of a dangerous drug, etc. (管有危險藥物等罪項) J
Reasons for Sentence
K K
1. Defendant, you have pleaded guilty to the 1st charge
L of possession of a dangerous drug, contrary to section 8(1)(a) L
and (2) of the Dangerous Drugs Ordinance.
M M
2. You admitted that on the 28th day of July 2008, in a
N N
private car parked outside Brilliant Garden, Castle Peak Road,
O Tuen Mun, you had in your possession a dangerous drug with two O
other co-accused defendants, 10.11 grammes of a powder
P containing 8.15 grammes of ketamine. P
Q 3. In respect of the 2nd charge of attempted possession Q
of arms and ammunition without a licence, contrary to section
R R
13(1) and (2) of the Firearms and Ammunition Ordinance and
section 159G of the Crimes Ordinance, you pleaded not guilty. I
S S
found you guilty, after trial, of attempting to have in your
T possession a quantity of arms and ammunition, namely, one T
revolver and six bullets, without a licence, on the 28th day of
U U
CRT33/23.1.2009/GTT 1 DCCC862/2008/Sentence
V V
A A
July 2008, at Room 120A of Tuen Mun Police Station, Tuen Mun. I
am therefore here to sentence you on two separate charges.
B B
C 4. In respect of the possession of dangerous drug charge, C
you were charged with two co-accused. They have already pleaded
D guilty and were sentenced to 120 hours of Community Service D
Order before another judge.
E E
5. On 28 July 2008 police officers had set up a road
F F
block outside Brilliant Garden in Castle Peak Road to carry out
G routine checking of vehicles. At about 10.52 pm, an officer G
intercepted a vehicle in which you were a passenger on board and
H the other two accused were, respectively, a driver and also a H
passenger.
I I
6. As the officer found all three of you acting
J J
furtively, he directed you to get off the vehicle for a body
K
search. Nothing suspicious was found. Another officer then K
performed a search on the vehicle and found the dangerous drugs
L hidden at a space between the handbrake and the front passenger L
seat of the vehicle. At 11.10 pm, the officer arrested you for
M possession of dangerous drugs and cautioned you. Under caution, M
you said that you had gathered money with the other two friends
N N
- that is, the two co-accused - to buy the “K Chai” for your own
consumption.
O O
P 7. The 2nd charge concerns an offence that happened when P
you were brought back to the Tuen Mun Police Station as a result
Q of the possession of dangerous drugs in the 1st charge. At about Q
11.34 pm, you three arrested persons were brought back to the
R R
Tuen Mun Police Station for further investigation. You were
brought inside a room inside the report room of Tuen Mun Police
S S
Station for inquiries and documentation. There were you three in
T the report room, together with an officer doing the T
documentation and another officer standing guard.
U U
CRT33/23.1.2009/GTT 2 DCCC862/2008/Sentence
V V
A A
8. The officer doing the documentation in the trial was
PW1, PC34628. The two co-accused were sitting on chairs and you
B B
were standing up. Whilst the officer, PW1, was doing some
C documentation at about 11.44, you suddenly dashed towards the C
right side of the officer and both of your hands grabbed the
D handle of his police revolver, which was in a holster around his D
waist. You tried to pull it out from the holster. The officer
E E
immediately held on to the revolver and pushed you away. The
other officer joined in to assist that officer and finally
F F
subdued you on the floor.
G G
9. After you were subdued on the floor you shouted, “Give
H me the gun. I want to die.” Another officer arrested you for H
attempted robbery and under caution you said, “Give me the gun.
I I
I want to die. Tell my mum for me I could not repay the credit
card payment of $100,000-odd.” No one was injured during the
J J
incident and no damage was caused to the revolver and the
K
holster of PW1 or to any other property. You took part in a K
video recorded interview on 29 July. That interview was given
L voluntarily. The police revolver was loaded at that time with L
six bullets.
M M
10. Much of the evidence in the trial of Charge 2 was
N N
admitted. The only issue at that time before me was whether you
had the specific intent. It was argued by your counsel, Mr Simon
O O
Yip, that you did not have the specific intent at the
P time because you were under the influence of drugs. Having heard P
all the evidence and having given my reasons for verdict, I
Q found you did have the necessary intent to possess the firearms Q
and the ammunition.
R R
11. Prior to sentencing you today, I had called for a
S S
probation officer’s report and a Community Service Order report.
T I had indicated to you that this was no indication of what T
sentence I shall pass upon you, but that all sentencing options
U would be open to me. Those reports are now before me. Mr Yip, U
CRT33/23.1.2009/GTT 3 DCCC862/2008/Sentence
V V
A A
your counsel, has made mitigation on your behalf fully, and I
have taken into account all that he has had to say.
B B
C 12. You are 23 years of age, single and have one previous C
conviction for assault occasioning actual bodily harm, for which
D you were sentenced to a Rehabilitation Centre. That conviction D
is now regarded as spent. You were sentenced when you were
E E
19 years of age, some four years ago. In the report itself, the
probation officer states that it appears that you are not in
F F
need of probation supervision, as you had received disciplinary
G training before and you, having been a grown-up with a stable G
job previously and have sufficient awareness of the price of
H violating the law. Mr Yip has said that probation is not H
recommended, not because of any bad character but because you
I I
had previously received disciplinary training; that you have
learnt a hard lesson and that you are willing to turn anew.
J J
K
13. In respect of a Community Service Order, again, the K
probation officer recognises that you are willing to make
L reparation for your wrongdoings by performing unpaid service and L
showed regret for your involvement in the present offences.
M However, considering your previous criminal record and your M
being convicted on this occasion of two offences, a Community
N N
Service Order is not recommended. Should I consider to grant a
lenient sentence on you, she recommends a Community Service
O O
Order of between 200 to 240 hours.
P P
14. I am informed by Mr Yip that principally the reason
Q for you committing the 1st offence of possession of dangerous Q
drugs was because of the anxiety and stress that you were facing
R R
as a result of your excessive spending habits and having to
repay your debts. You therefore took ketamine to relieve that
S S
stress. However, that rebounded on you in that that caused the
T commission of the 2nd offence. T
U U
CRT33/23.1.2009/GTT 4 DCCC862/2008/Sentence
V V
A A
15. All along, throughout the time you were released from
the Rehabilitation Centre, Mr Yip submits that you have been
B B
gainfully employed, and even prior to you receiving
C rehabilitation at the Rehabilitation Centre you had had gainful C
employment. You had been a printing worker at a boat factory
D just in December, and I am informed that you stopped working D
there in December as you were not sure what would be the result
E E
of these offences and you did not want to cause a problem to the
factory. However, I am informed that should you not be
F F
incarcerated your job will still be there waiting for you and
G you will be able to return to the factory to work if you have a G
chance to do so.
H H
16. No doubt both offences are serious, but more
I I
particularly the second offence of attempted possession of the
arms and ammunitions. That is reflected in that that is also an
J J
excepted offence.
K K
17. I found that the reason for you committing this
L offence was as a result of an emotional outburst that had L
overcome you suddenly and without reason in the report room.
M Prior to that, upon your arrest up until that moment, you were M
co-operative with the police, were calm and coherent. As I
N N
mentioned, suddenly, without reason, you lost control of
yourself and out of an outburst of emotion you attempted to grab
O O
the officer’s revolver saying that you wanted to kill yourself.
P Again, Mr Yip has boiled all of this down to the fact that the P
debt that you had in incurred was the sole and principal reason
Q for all this stress and anxiety. Mr Yip submits that although Q
you pleaded not guilty to that 2nd charge, in fact all the facts
R R
were admitted in law and the only issue was the question of
intent.
S S
T 18. This is not an easy case for which to sentence you. Mr T
Yip has made very persuasive mitigation on your behalf and given
U the fact that you have learnt a good lesson and have shown U
CRT33/23.1.2009/GTT 5 DCCC862/2008/Sentence
V V
A A
remorse; that your family members support you; that you have
employment still open to you; and that you have worked out a
B B
repayment plan, I am prepared to give you this last chance and
C grant you leniency and sentence you to a Community Service C
Order.
D D
19. It appears certain, which I accept, that from the
E E
contents of the report you do not have a bad personal character.
I am informed that for the offence of assault occasioning actual
F F
bodily harm, you were sentenced to a Rehabilitation Centre
G because that was a gang fight. That was when you were a G
teenager. I would like to now ask you, defendant, if you are
H willing to undertake the order for a Community Service Order. H
I I
DEFENDANT: Yes.
J J
20. I sentence you, then, for both charges to 240 hours of
K
community service. Those sentences shall run concurrent to each K
other. That is, of course, the maximum number of hours you can
L serve. L
M M
N N
O O
(S. D’Almada Remedios)
P District Judge P
Q Q
R R
S S
T T
U U
CRT33/23.1.2009/GTT 6 DCCC862/2008/Sentence
V V