DCCC 397/ 2009
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 397 OF 2009
HKSAR
V
LO KONG HO Defendant
Before: Deputy District Judge Eddie Yip
Date: 4 June 2009 at 9:53am
Present: Ms. Jasmine Ching, Senior Public Prosecutor for HKSAR
Mr. Mui Moosdeen Azmat of M/S A.M. Mui & Kwan,
for Defendant
Charges: 1) Trafficking in a dangerous drug (販運危險藥物)
2) Assaulting a police officer in the execution of her duty
(襲擊執行職責的警務人員)
3 & 4) Resisting a police officer in the execution of his duty
(抗拒執行職責的警務人員)
__________________
Reasons for Sentence
__________________
The charges and facts
1. The Defendant pleads guilty to trafficking in a dangerous drug,
namely 116.81 grammes of ketamine (1st charge), assaulting a police
officer acting in execution of duty (2 nd charge), and two charges of
resisting arrest (3rd and 4th charges).
2. At 12:25 a.m. on 12th February 2009, the police set up a roadblock
at the junction of Cameron Road and Carnavon Road, Tsimshatsui. The
Defendant was turning to Cameron Road from Chatham Road South.
When he saw the police, he instantly turned back. He was holding a bag,
which transpired later to contain 46 plastic bags of powder containing
116.81 grammes of ketamine (1st charge). WPC 4267 followed him to
the junction of Prat Avenue and Chatham Road South. As he was waving
for a taxi, she intercepted him and declared police identity. He pushed
her chest so that she had to step backward (2 nd charge). She suffered
minor injuries.
3. He discarded the bag with contents. Other police officers came to
assist her. WPC 4267 picked up the bag with contents. He put up a
struggle in resisting the arrest made by PC 2166 and PC 51491, who also
suffered minor injuries.
Mitigating put forward
4. The Defendant is 19 years of age. He was education up to F5. His
parents divorced when he was very young. He lived with his mother. He
could not get along with his mother or his stepfather. He had frequent
quarrels with them. He mixed with bad peers and became addicted to
drugs. He used drugs as a painkiller.
5. He was sentenced to 6 years’ imprisonment on 20 March 2009 for
a similar offence relating to cocaine and ketamine (DC 1036/08). The
offence took place on 21 June 2008. He committed the present offence
whilst on bail for DC 1036/08.
6. His solicitor submits as mitigating factors:
(1) his young age, being 19 at the time of the offence;
(2) the present case be given a meaningful discount within the
jurisdictional limit of the District Court;
2
(3) the sentence in DC 1036/08 be considered in the overall sentence
by totality.
7. On the return day of sentence, his solicitor also puts forward a
report from the Yang Memorial Methodist Social Service. It recounts the
history of the Defendant’s file since July 2008. The service centre lost
contact of the Defendant between January and March 2009. One can note
the present offence taking place on 12 February 2009. The Defendant
told the reporting social worker that he had committed the present offence
as he could not earn sufficient money for his personal and drug spending.
The reporting social worker pleads for leniency and a chance for
guidance.
Sentencing principles
Guidelines applicable to ketamine traffickers
8. The Court of Appeal in Secretary for Justice v Hii Siew Cheng
CAAR 7/2006 had laid down sentencing guidelines for trafficking in
ketamine as follows:
(1) up to 1 gramme – within the sentencer’s discretion;
(2) over 1 gramme to 10 grammes – 2 to 4 years’
imprisonment;
(3) 10 to 50 grammes – 4 to 6 years’ imprisonment;
(4) 50 to 300 grammes – 6 to 9 years’ imprisonment;
(5) 300 to 600 grammes – 9 to 12 years’ imprisonment;
(6) 600 to 1000 grammes – 12 to 14 years’ imprisonment;
and
(7) over 1000 grammes – 14 years upwards.
3
9. The present quantity of 116.81 grammes is within the band of 6 to
9 years’ imprisonment.
Sentences for assaulting and resisting police officers
10. Both offences are under section 63 of the Police Force Ordinance,
Cap. 232. The maximum penalty is a fine of $5,000 and 6 months’
imprisonment. There are no sentencing tariffs or customary sentences.
Young age
11. In Attorney General v Li Chi-ko [1987] HKLR 1233 a 20-year-old
defendant who committed robbery was not regarded young for a discount.
The Court of Appeal held that, youth of itself was not such an exceptional
circumstance, although extreme youth may be (per Yang, then-Acting
C.J., at 1234).
Committing an offence whilst on bail for another offence
12. In HKSAR v Yuen Gang-shing Cr App 303/ 1997, the Deputy
Judge adopted a starting point of 7 years’ imprisonment on the ground
that the 1 year on top of the 6 years was due to the applicant’s having
committed the offence whilst he was on bail. In upholding the sentence,
Liu JA said in para. 5 of the Judgment:
Commission of any offence whilst on bail is unquestionably an aggravating
factor to be taken into account as did the Deputy Judge.
13. In HKSAR v Ngo Wai-kuen Cr Apps 191 & 334/ 2004, the
applicant was put on bail for the offence of possession of a dangerous
drug (Charge 1). She then committed another offence of possession of a
4
dangerous drug (Charge 2) and the offence of keeping a divan (Charge 3).
Stuart-Moore VP said in para. 9 of the Judgment:
Each offence was committed on a wholly separate occasion. Indeed, it is a
significant aggravating feature that the second and third offences in the
sequence were committed whilst the applicant was on bail.
14. Section 82(2)(a) of the District Court Ordinance, Cap. 336, states
as follows:
[N]o sentence of imprisonment passed by the Court shall exceed 7 years in
respect of one offence and where 2 or more consecutive terms of
imprisonment are imposed by the Court under subsection (1), the aggregate of
the said terms of imprisonment shall not exceed 7 years.
15. In HKSAR v Li Yan CACC 84/1998, the applicant pleaded guilty to
robbery (1st charge) and unlawful remaining (2nd charge). The judge
sentenced him to a total of 7 years’ imprisonment, namely 6 years’ and 1
year’s consecutive terms. On appeal it was argued that the sentence was
wrong in principle because it allowed the applicant no benefit for his plea
as the judge could not have passed a longer sentence after trial. After
reviewing the authorities, Mortimer VP said:
8. The cases cited above demonstrate – and it is self-evident – that justice
requires a further meaningful discount should be given from the maximum of
7 years after plea in those cases which would attract 7 years or more as the
proper sentence which the court ought to impose. This is to give the accused
some benefit for his plea of guilty.
9. But, neither policy nor justice require that a 1/3 discount for a plea
should be given from the maximum of 7 years regardless of the proper starting
point. In cases where the appropriate sentence to be imposed after discount is
7 years or more, a meaningful discount from 7 years should be given in order
to give some benefit for the plea. The same applies if the appropriate sentence
is so near 7 years that the discount is not meaningful. As to what is
meaningful in the particular circumstances, this must be left to the sentencer,
but rarely would a reduction of less than 1 year be so considered.
5
Concurrent or consecutive sentences
16. In Attorney General v Cheung Pit-yiu CAAR 11/1988, Cons VP
stated, at para. 6, as follows:
This Court has more than once had cause to restate the general principle
that concurrent sentences are only appropriate for offences that can
properly be said to have been committed in the course of a single
transaction. That can hardly be said of offences involving the possession of
drugs, as the judge below correctly believed, on occasions which occurred
in separate months. We agree therefore with the submission of Mr. Cross,
who now appears for the Attorney General, that the concurrent sentences
in fact passed below would he wrong in principle, unless of course, the
principle of overall totality required that in the circumstances no further
punishment should be imposed. (my emphasis)
Totality
17. Cons VP’s observations in Cheung Pit-yiu (above) takes us to the
principle of totality. In R v McKechan [2004] EWCA Crim 212, David
Clark J said that totality was:
[A] principle that consecutive sentencing for multiple offences must not be
used so as to produce a total sentence which is excessive for the overall
offending.
18. In HKSAR v Zhen Futing Cr App 509/2003, the applicant was
charged with two offences of possession of firearms without a licence,
two of possession of offensive weapons, and one of resisting a police
officer in the due execution of his duty. Stock JA said, at para. 18, that:
Judges must always sentence accurately for each particular offence and having
done so, only then address the question of totality.
The sentence I pass
1st charge: Trafficking
6
19. Despite the reporting social worker’s observations and plea for
leniency, this is indeed a very serious case. It is trite to mention the harm
caused to others by trafficking in drugs. There is a marked outcry for
deterrence compared with the rehabilitation of the Defendant in the
present case.
20. The quantity of 116.81 grammes of ketamine falls within the range
of 6 to 9 years’ imprisonment. Based on the guidelines in Hii Siew
Cheng (above), I should take 7 years as the starting point. Coupled with
the commission of the present offence whilst on bail in DC 1036/08,
which was an aggravating factor as stated in Yuen Gang-shing (above), I
take 7 years and 6 months as the starting point.
23. According to Li chi-ko (above), the Defendant’s age, then 19 years
old, was not of extreme youth hence any mitigating factor. I reduce the
sentence by one-third because of the plea of guilty. There are no other
mitigating factors. The sentence for the 1st charge is 5 years.
2nd, 3rd, and 4th charges
24. As each police officer suffered only minor injuries, I take 3
months’ imprisonment as the starting point. I reduce it by one-third
because of the plea of guilty. The sentence for each of the 2nd, 3rd, and 4th
charges is 2 months.
Consecutive sentences have to be imposed
24. As the facts pertaining to each charge were separate and distinct,
all sentences should be consecutive, subject to totality.
7
Totality
25. In the precinct of the present case, given the sentence of 5 years for
the 1st charge, I do not think it serves any practical purpose to impose any
further length. Therefore I order the sentences in the 2 nd, 3rd, and 4th
charges to run concurrently with the sentence in the 1st charge. In terms
of the overall totality for the present case and DC 1036/08, I order 2 ½
years of the present sentence to be consecutive to DC 1036/08, and the
remaining part to be concurrent with DC 1036/08.
Eddie Yip
Deputy District Judge
8
DCCC 397/ 2009
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 397 OF 2009
HKSAR
V
LO KONG HO Defendant
Before: Deputy District Judge Eddie Yip
Date: 4 June 2009 at 9:53am
Present: Ms. Jasmine Ching, Senior Public Prosecutor for HKSAR
Mr. Mui Moosdeen Azmat of M/S A.M. Mui & Kwan,
for Defendant
Charges: 1) Trafficking in a dangerous drug (販運危險藥物)
2) Assaulting a police officer in the execution of her duty
(襲擊執行職責的警務人員)
3 & 4) Resisting a police officer in the execution of his duty
(抗拒執行職責的警務人員)
__________________
Reasons for Sentence
__________________
The charges and facts
1. The Defendant pleads guilty to trafficking in a dangerous drug,
namely 116.81 grammes of ketamine (1st charge), assaulting a police
officer acting in execution of duty (2 nd charge), and two charges of
resisting arrest (3rd and 4th charges).
2. At 12:25 a.m. on 12th February 2009, the police set up a roadblock
at the junction of Cameron Road and Carnavon Road, Tsimshatsui. The
Defendant was turning to Cameron Road from Chatham Road South.
When he saw the police, he instantly turned back. He was holding a bag,
which transpired later to contain 46 plastic bags of powder containing
116.81 grammes of ketamine (1st charge). WPC 4267 followed him to
the junction of Prat Avenue and Chatham Road South. As he was waving
for a taxi, she intercepted him and declared police identity. He pushed
her chest so that she had to step backward (2 nd charge). She suffered
minor injuries.
3. He discarded the bag with contents. Other police officers came to
assist her. WPC 4267 picked up the bag with contents. He put up a
struggle in resisting the arrest made by PC 2166 and PC 51491, who also
suffered minor injuries.
Mitigating put forward
4. The Defendant is 19 years of age. He was education up to F5. His
parents divorced when he was very young. He lived with his mother. He
could not get along with his mother or his stepfather. He had frequent
quarrels with them. He mixed with bad peers and became addicted to
drugs. He used drugs as a painkiller.
5. He was sentenced to 6 years’ imprisonment on 20 March 2009 for
a similar offence relating to cocaine and ketamine (DC 1036/08). The
offence took place on 21 June 2008. He committed the present offence
whilst on bail for DC 1036/08.
6. His solicitor submits as mitigating factors:
(1) his young age, being 19 at the time of the offence;
(2) the present case be given a meaningful discount within the
jurisdictional limit of the District Court;
2
(3) the sentence in DC 1036/08 be considered in the overall sentence
by totality.
7. On the return day of sentence, his solicitor also puts forward a
report from the Yang Memorial Methodist Social Service. It recounts the
history of the Defendant’s file since July 2008. The service centre lost
contact of the Defendant between January and March 2009. One can note
the present offence taking place on 12 February 2009. The Defendant
told the reporting social worker that he had committed the present offence
as he could not earn sufficient money for his personal and drug spending.
The reporting social worker pleads for leniency and a chance for
guidance.
Sentencing principles
Guidelines applicable to ketamine traffickers
8. The Court of Appeal in Secretary for Justice v Hii Siew Cheng
CAAR 7/2006 had laid down sentencing guidelines for trafficking in
ketamine as follows:
(1) up to 1 gramme – within the sentencer’s discretion;
(2) over 1 gramme to 10 grammes – 2 to 4 years’
imprisonment;
(3) 10 to 50 grammes – 4 to 6 years’ imprisonment;
(4) 50 to 300 grammes – 6 to 9 years’ imprisonment;
(5) 300 to 600 grammes – 9 to 12 years’ imprisonment;
(6) 600 to 1000 grammes – 12 to 14 years’ imprisonment;
and
(7) over 1000 grammes – 14 years upwards.
3
9. The present quantity of 116.81 grammes is within the band of 6 to
9 years’ imprisonment.
Sentences for assaulting and resisting police officers
10. Both offences are under section 63 of the Police Force Ordinance,
Cap. 232. The maximum penalty is a fine of $5,000 and 6 months’
imprisonment. There are no sentencing tariffs or customary sentences.
Young age
11. In Attorney General v Li Chi-ko [1987] HKLR 1233 a 20-year-old
defendant who committed robbery was not regarded young for a discount.
The Court of Appeal held that, youth of itself was not such an exceptional
circumstance, although extreme youth may be (per Yang, then-Acting
C.J., at 1234).
Committing an offence whilst on bail for another offence
12. In HKSAR v Yuen Gang-shing Cr App 303/ 1997, the Deputy
Judge adopted a starting point of 7 years’ imprisonment on the ground
that the 1 year on top of the 6 years was due to the applicant’s having
committed the offence whilst he was on bail. In upholding the sentence,
Liu JA said in para. 5 of the Judgment:
Commission of any offence whilst on bail is unquestionably an aggravating
factor to be taken into account as did the Deputy Judge.
13. In HKSAR v Ngo Wai-kuen Cr Apps 191 & 334/ 2004, the
applicant was put on bail for the offence of possession of a dangerous
drug (Charge 1). She then committed another offence of possession of a
4
dangerous drug (Charge 2) and the offence of keeping a divan (Charge 3).
Stuart-Moore VP said in para. 9 of the Judgment:
Each offence was committed on a wholly separate occasion. Indeed, it is a
significant aggravating feature that the second and third offences in the
sequence were committed whilst the applicant was on bail.
14. Section 82(2)(a) of the District Court Ordinance, Cap. 336, states
as follows:
[N]o sentence of imprisonment passed by the Court shall exceed 7 years in
respect of one offence and where 2 or more consecutive terms of
imprisonment are imposed by the Court under subsection (1), the aggregate of
the said terms of imprisonment shall not exceed 7 years.
15. In HKSAR v Li Yan CACC 84/1998, the applicant pleaded guilty to
robbery (1st charge) and unlawful remaining (2nd charge). The judge
sentenced him to a total of 7 years’ imprisonment, namely 6 years’ and 1
year’s consecutive terms. On appeal it was argued that the sentence was
wrong in principle because it allowed the applicant no benefit for his plea
as the judge could not have passed a longer sentence after trial. After
reviewing the authorities, Mortimer VP said:
8. The cases cited above demonstrate – and it is self-evident – that justice
requires a further meaningful discount should be given from the maximum of
7 years after plea in those cases which would attract 7 years or more as the
proper sentence which the court ought to impose. This is to give the accused
some benefit for his plea of guilty.
9. But, neither policy nor justice require that a 1/3 discount for a plea
should be given from the maximum of 7 years regardless of the proper starting
point. In cases where the appropriate sentence to be imposed after discount is
7 years or more, a meaningful discount from 7 years should be given in order
to give some benefit for the plea. The same applies if the appropriate sentence
is so near 7 years that the discount is not meaningful. As to what is
meaningful in the particular circumstances, this must be left to the sentencer,
but rarely would a reduction of less than 1 year be so considered.
5
Concurrent or consecutive sentences
16. In Attorney General v Cheung Pit-yiu CAAR 11/1988, Cons VP
stated, at para. 6, as follows:
This Court has more than once had cause to restate the general principle
that concurrent sentences are only appropriate for offences that can
properly be said to have been committed in the course of a single
transaction. That can hardly be said of offences involving the possession of
drugs, as the judge below correctly believed, on occasions which occurred
in separate months. We agree therefore with the submission of Mr. Cross,
who now appears for the Attorney General, that the concurrent sentences
in fact passed below would he wrong in principle, unless of course, the
principle of overall totality required that in the circumstances no further
punishment should be imposed. (my emphasis)
Totality
17. Cons VP’s observations in Cheung Pit-yiu (above) takes us to the
principle of totality. In R v McKechan [2004] EWCA Crim 212, David
Clark J said that totality was:
[A] principle that consecutive sentencing for multiple offences must not be
used so as to produce a total sentence which is excessive for the overall
offending.
18. In HKSAR v Zhen Futing Cr App 509/2003, the applicant was
charged with two offences of possession of firearms without a licence,
two of possession of offensive weapons, and one of resisting a police
officer in the due execution of his duty. Stock JA said, at para. 18, that:
Judges must always sentence accurately for each particular offence and having
done so, only then address the question of totality.
The sentence I pass
1st charge: Trafficking
6
19. Despite the reporting social worker’s observations and plea for
leniency, this is indeed a very serious case. It is trite to mention the harm
caused to others by trafficking in drugs. There is a marked outcry for
deterrence compared with the rehabilitation of the Defendant in the
present case.
20. The quantity of 116.81 grammes of ketamine falls within the range
of 6 to 9 years’ imprisonment. Based on the guidelines in Hii Siew
Cheng (above), I should take 7 years as the starting point. Coupled with
the commission of the present offence whilst on bail in DC 1036/08,
which was an aggravating factor as stated in Yuen Gang-shing (above), I
take 7 years and 6 months as the starting point.
23. According to Li chi-ko (above), the Defendant’s age, then 19 years
old, was not of extreme youth hence any mitigating factor. I reduce the
sentence by one-third because of the plea of guilty. There are no other
mitigating factors. The sentence for the 1st charge is 5 years.
2nd, 3rd, and 4th charges
24. As each police officer suffered only minor injuries, I take 3
months’ imprisonment as the starting point. I reduce it by one-third
because of the plea of guilty. The sentence for each of the 2nd, 3rd, and 4th
charges is 2 months.
Consecutive sentences have to be imposed
24. As the facts pertaining to each charge were separate and distinct,
all sentences should be consecutive, subject to totality.
7
Totality
25. In the precinct of the present case, given the sentence of 5 years for
the 1st charge, I do not think it serves any practical purpose to impose any
further length. Therefore I order the sentences in the 2 nd, 3rd, and 4th
charges to run concurrently with the sentence in the 1st charge. In terms
of the overall totality for the present case and DC 1036/08, I order 2 ½
years of the present sentence to be consecutive to DC 1036/08, and the
remaining part to be concurrent with DC 1036/08.
Eddie Yip
Deputy District Judge
8