區域法院（刑事）Deputy District Judge Charles J Chan5/1/2021[2021] HKDC 32
DCCC715/2020
A A
B B
DCCC 715/2020
C [2021] HKDC 32 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 715 OF 2020
F F
G ------------------------------ G
HKSAR
H H
v
I NG SZE TSUN I
------------------------------
J J
K Before: Deputy District Judge Charles J Chan K
Date: 6 January 2021
L L
Present: Mr Chong Manual, Counsel-on-fiat, for HKSAR/Director of
M Public Prosecutions M
Mr Cheung Chi Wai, David, instructed by Li, Chow &
N N
Company, assigned by the Director of Legal Aid, for the
O defendant O
Offence: [1] & [2] Trafficking in a dangerous drug（販運危險藥物）
P P
Q Q
-----------------------------------------
R
REASONS FOR SENTENCE R
-----------------------------------------
S S
T T
U U
V V
-2-
A A
B B
1. The defendant has pleaded guilty to two charges of
C Trafficking in Dangerous Drug, contrary to section 4(1)(a) and (3) of the C
Dangerous Drugs Ordinance (Cap 134).
D D
E 2. This case involves a total of 38.26 grammes of a solid E
containing 32.29 grammes of ketamine (ie 0.56 g of ketamine for Charge
F F
1 and 31.73 g of ketamine for Charge 2).
G G
3. At around 1319 hours on 15 April 2020, PC22452 and a team
H H
of police officers spotted the defendant walking out of Room 1214, 12/F,
I Panda Hotel, 3 Tsuen Wah Street, Tsuen Wan (“the Hotel”). The defendant I
was later intercepted and upon search, one transparent resealable bag
J J
containing 0.66 grammes of a solid containing 0.56 grammes of ketamine
K was found on the defendant. K
L L
4. The defendant was arrested for Trafficking in Dangerous
M Drug (Charge 1). Under caution, the defendant admitted that he planned M
to sell drugs to others.
N N
O 5. At around 1323 hours, a search warrant was executed to O
search Room 1214 of the Hotel. Upon search, the followings were found:-
P P
Q (a) 15 transparent resealable bags containing 10.2 Q
grammes of a solid containing 8.33 grammes of
R R
ketamine;
S S
(b) 2 transparent resealable bags each containing:-
T T
U U
V V
-3-
A A
B B
C (i) 20 small transparent resealable bags containing C
13.7 grammes of a solid containing 11.7
D D
grammes of ketamine;
E E
(ii) 20 small transparent resealable bags containing
F F
13.7 grammes of a solid containing 11.7
G grammes of ketamine; G
H H
(c) 1 recycle bag containing a white paper bag containing:-
I I
(i) 5 bundles of unused transparent resealable bags;
J J
K (ii) 3 electronic scales; and K
L L
(iii) 1 silver coloured spoon.
M M
6. The defendant was therefore arrested for another charge of
N N
Trafficking in Dangerous Drug (Charge 2). Under caution, the defendant
O admitted that the drugs in the room were to be sold for monetary reward O
and he further confirmed the same in the cautioned video recorded
P P
interview. He said, inter alia, that he would collect $550 for each pack of
Q drugs sold and he personally would receive a reward of $50 for each pack Q
while the remaining $500 would be given to a middleman.
R R
S 7. The estimated value of the dangerous drugs was HK$19,245. S
T T
U U
V V
-4-
A A
B B
8. The defendant admits that at all material times, he possessed
C all the ketamine in the present case for the purpose of unlawful trafficking. C
D D
Mitigation
E E
9. Counsel for the Defence, Mr Cheung has filed a set of written
F F
submissions and I have considered them in full.
G G
10. The defendant is 19 years old and is now serving a sentence
H H
of detention order in the Drug Addiction Treatment Centre (“DATC”)
I since 13 August 2020 for an offence of Possession of Dangerous Drug he I
committed in February 2020 (“the previous offence”).
J J
K 11. The defendant was educated up to Form 1 level. At the time K
of the arrest, the defendant was enrolled as a full-time student with the
L L
Vocational Training Council (“VTC”) in a certificate course for
M hairdressing. He was also working part-time, earning around $3,000 per M
month.
N N
O Assessment of sentence O
P P
12. Mr Cheung has referred to the sentencing guideline in HKSAR
Q v Hii Siew Cheng [2009] 1 HKLRD 1. The quantity of 10 to 50 grammes Q
of ketamine falls within the range of 4 to 6 years’ imprisonment. For
R R
Charge 1, I am of the view that a 1-year starting point is appropriate for
S such small quantity of ketamine. For Charge 2, my calculation gives rise S
to a starting point of 60-month approximately.
T T
U U
V V
-5-
A A
B B
13. I note that the defendant is still young but it does not detract
C from the fact that trafficking in dangerous drugs is one of the most serious C
offences. Section 109A of the Criminal Procedure Ordinance, Cap 221
D D
(“CPO”) provides specific considerations for dealing with young
E offenders. Nevertheless, drugs trafficking falls within the category of E
excepted offence under Schedule 3 of the CPO and attention should be
F F
given to s 109A(1A). As a result, I do not consider that any form of
G sentence other than imprisonment is appropriate with regard to such a G
serious offence. I also do not consider necessary to call for any report
H H
before passing the sentence.
I I
14. In relation to the aggravating factor, it is noted that the
J J
defendant has a criminal record of Possession of Dangerous Drug. He will
K not be punished again for that offence. Nevertheless, it shows clearly that K
the defendant had committed the present case whilst on bail.
L L
M 15. Committing an offence whilst on bail is an aggravating factor. M
In the case of HKSAR v Wong Yun Fat [2017] 4 HKLRD 59, which
N N
concerns the sentencing of an offence of trafficking in dangerous drug
O committed whilst on bail for an offence of possession of dangerous drug, O
the Court of Appeal held that a 6 months’ imprisonment is an appropriate
P P
enhancement of starting point for such an aggravating factor:-
Q Q
“[48] It is clear from the authorities that even if the bail is only
R police bail the fact that the bailed person committed an offence R
whilst on bail is still to be regarded as an aggravating factor. The
S issue is not whether the sentence should be enhanced but, rather, S
by how much it should be enhanced. In the present case the
applicant later pleaded guilty to the possession offence for which
T he had been bailed and so he must have been aware of the T
likelihood of being prosecuted. In those circumstances his
conduct in engaging in trafficking in dangerous drugs, in the
U U
V V
-6-
A A
B words of the Court of Appeal in the Leung Ting Fung case, B
demonstrates “in terms of the offence, … a serious disregard for
C the law and, in terms of the offender, it evidences a persistence C
in offending.” We are of the view that in the circumstances of
the present case and in respect of this offender a further period
D of 6 months’ imprisonment is an appropriate enhancement. This D
results in a final starting point for count 1 of 11 years’
E
imprisonment.” E
F 16. I noted that the dangerous drugs involved in that case was ICE F
and the quantity is much more than the present case. In the circumstances,
G G
I am of the view that an enhancement of starting point for 3 months’
H imprisonment should be adopted. H
I I
17. On the other hand, Mr Cheung submits that I should take into
J account the defendant’s earlier sentence for Possession of Dangerous Drug J
and regard it had been heard together with the charges in the present
K K
proceedings when applying the totality principle.
L L
18. Section 6A(1) of the Drug Addiction Treatment Centres
M M
Ordinance, Cap.244 provides that:-
N N
“(1) If a person in respect of whom a detention order, a
O supervision order or a recall order is in force is sentenced to O
imprisonment—
P P
(a) ……
Q (b) for a term of more than 9 months (or in the case Q
of a detention order, supervision order or recall order
made before the commencement# of the Drug Addiction
R R
Treatment Centres (Amendment) Ordinance 1986 (24 of
1986), 2 years) or a new detention order is made in
S respect of him, the first-mentioned detention order, or the S
supervision order or recall order, as the case may be,
shall cease to have effect.”
T T
U U
V V
-7-
A A
B B
19. In light of the above, the DATC Order would cease to have
C effect on the defendant once I have passed on him a corresponding C
custodial sentence for Charge 2. In considering the question of totality,
D D
had the present case been dealt with on the same occasion at the time the
E previous offence was heard, a starting point of 12 months’ imprisonment E
or lower would be adopted for the previous offence (see HKSAR v Mok
F F
Cho Tik [2001] 1 HKC 261 at 267 B-E).
G G
20. In both the present case and the previous case, the defendant
H H
pleaded guilty to the offences he faced. The defendant would be entitled
I to a full one-third discount. Therefore, the sentence of the possession of I
dangerous drug would be reduced from 12 months to 8 months, had a
J J
starting point of 12-month been adopted. The fact, as it now stands, is that
K the defendant had already spent approximately 5 months in the DATC. I K
hasten to add that it is not necessarily helpful to compare the sentence of
L L
the detention order in DATC and a term of imprisonment in the context of
M this case. However, for the purpose of sentencing in the present case, I am M
prepared to take into account the time the defendant had spent on serving
N N
the current detention order in the DATC.
O O
P
21. That said, the offence of possession happened on a different P
occasion. It is clear that a partly consecutive sentence is appropriate. In
Q Q
the case of HKSAR v Choi Yiu Cho (unreported, CACC 158/2014, 19
R
November 2014), the sentencing judge adopted a starting point of 3½ R
years’ imprisonment for the charge of Trafficking in Dangerous Drug and
S S
18 months’ imprisonment for the charge of Possession of Dangerous Drug.
T The Court of Appeal reduced the sentence for the charge of possession T
U U
V V
-8-
A A
B B
from 18 months to 12 months and ordered 3 months’ imprisonment to be
C served consecutively to the sentence imposed on the charge of trafficking. C
D D
22. I shall bear these features in mind when I consider the
E principle of totality. E
F F
23. Having carefully considered all the circumstances, I shall
G sentence the defendant as follows:- G
H H
(a) Charge 1: 1 year starting point reduced to 8 months
I for his guilty plea; I
J J
(b) Charge 2: 60 month starting point reduced to 40
K months for his guilty plea; K
L L
(c) 3 months’ imprisonment should be added to the starting
M point to reflect the element of committing the offence M
whilst on bail and this is reduced to 2 months to reflect
N N
his guilty plea.
O O
24. I am of the view that Charge 1 and Charge 2 should be served
P P
concurrently.
Q Q
25. Taking into account the totality principle and the mitigations,
R R
especially his age, in favour of the defendant, a further 6-month reduction
S is given. I do not see that any further discount is justified. S
T T
U U
V V
-9-
A A
B B
26. This gives a total of 36 months’ imprisonment. In other
C words, the calculation for Charge 1 becomes 8m + 2m – 6m = 4 months C
and that for Charge 2 becomes 40m + 2m – 6m = 36 months.
D D
E 27. The defendant is sentenced to a total of 36 months’ E
imprisonment accordingly.
F F
G G
H H
I ( Charles J Chan ) I
Deputy District Judge
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 715/2020
C [2021] HKDC 32 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 715 OF 2020
F F
G ------------------------------ G
HKSAR
H H
v
I NG SZE TSUN I
------------------------------
J J
K Before: Deputy District Judge Charles J Chan K
Date: 6 January 2021
L L
Present: Mr Chong Manual, Counsel-on-fiat, for HKSAR/Director of
M Public Prosecutions M
Mr Cheung Chi Wai, David, instructed by Li, Chow &
N N
Company, assigned by the Director of Legal Aid, for the
O defendant O
Offence: [1] & [2] Trafficking in a dangerous drug（販運危險藥物）
P P
Q Q
-----------------------------------------
R
REASONS FOR SENTENCE R
-----------------------------------------
S S
T T
U U
V V
-2-
A A
B B
1. The defendant has pleaded guilty to two charges of
C Trafficking in Dangerous Drug, contrary to section 4(1)(a) and (3) of the C
Dangerous Drugs Ordinance (Cap 134).
D D
E 2. This case involves a total of 38.26 grammes of a solid E
containing 32.29 grammes of ketamine (ie 0.56 g of ketamine for Charge
F F
1 and 31.73 g of ketamine for Charge 2).
G G
3. At around 1319 hours on 15 April 2020, PC22452 and a team
H H
of police officers spotted the defendant walking out of Room 1214, 12/F,
I Panda Hotel, 3 Tsuen Wah Street, Tsuen Wan (“the Hotel”). The defendant I
was later intercepted and upon search, one transparent resealable bag
J J
containing 0.66 grammes of a solid containing 0.56 grammes of ketamine
K was found on the defendant. K
L L
4. The defendant was arrested for Trafficking in Dangerous
M Drug (Charge 1). Under caution, the defendant admitted that he planned M
to sell drugs to others.
N N
O 5. At around 1323 hours, a search warrant was executed to O
search Room 1214 of the Hotel. Upon search, the followings were found:-
P P
Q (a) 15 transparent resealable bags containing 10.2 Q
grammes of a solid containing 8.33 grammes of
R R
ketamine;
S S
(b) 2 transparent resealable bags each containing:-
T T
U U
V V
-3-
A A
B B
C (i) 20 small transparent resealable bags containing C
13.7 grammes of a solid containing 11.7
D D
grammes of ketamine;
E E
(ii) 20 small transparent resealable bags containing
F F
13.7 grammes of a solid containing 11.7
G grammes of ketamine; G
H H
(c) 1 recycle bag containing a white paper bag containing:-
I I
(i) 5 bundles of unused transparent resealable bags;
J J
K (ii) 3 electronic scales; and K
L L
(iii) 1 silver coloured spoon.
M M
6. The defendant was therefore arrested for another charge of
N N
Trafficking in Dangerous Drug (Charge 2). Under caution, the defendant
O admitted that the drugs in the room were to be sold for monetary reward O
and he further confirmed the same in the cautioned video recorded
P P
interview. He said, inter alia, that he would collect $550 for each pack of
Q drugs sold and he personally would receive a reward of $50 for each pack Q
while the remaining $500 would be given to a middleman.
R R
S 7. The estimated value of the dangerous drugs was HK$19,245. S
T T
U U
V V
-4-
A A
B B
8. The defendant admits that at all material times, he possessed
C all the ketamine in the present case for the purpose of unlawful trafficking. C
D D
Mitigation
E E
9. Counsel for the Defence, Mr Cheung has filed a set of written
F F
submissions and I have considered them in full.
G G
10. The defendant is 19 years old and is now serving a sentence
H H
of detention order in the Drug Addiction Treatment Centre (“DATC”)
I since 13 August 2020 for an offence of Possession of Dangerous Drug he I
committed in February 2020 (“the previous offence”).
J J
K 11. The defendant was educated up to Form 1 level. At the time K
of the arrest, the defendant was enrolled as a full-time student with the
L L
Vocational Training Council (“VTC”) in a certificate course for
M hairdressing. He was also working part-time, earning around $3,000 per M
month.
N N
O Assessment of sentence O
P P
12. Mr Cheung has referred to the sentencing guideline in HKSAR
Q v Hii Siew Cheng [2009] 1 HKLRD 1. The quantity of 10 to 50 grammes Q
of ketamine falls within the range of 4 to 6 years’ imprisonment. For
R R
Charge 1, I am of the view that a 1-year starting point is appropriate for
S such small quantity of ketamine. For Charge 2, my calculation gives rise S
to a starting point of 60-month approximately.
T T
U U
V V
-5-
A A
B B
13. I note that the defendant is still young but it does not detract
C from the fact that trafficking in dangerous drugs is one of the most serious C
offences. Section 109A of the Criminal Procedure Ordinance, Cap 221
D D
(“CPO”) provides specific considerations for dealing with young
E offenders. Nevertheless, drugs trafficking falls within the category of E
excepted offence under Schedule 3 of the CPO and attention should be
F F
given to s 109A(1A). As a result, I do not consider that any form of
G sentence other than imprisonment is appropriate with regard to such a G
serious offence. I also do not consider necessary to call for any report
H H
before passing the sentence.
I I
14. In relation to the aggravating factor, it is noted that the
J J
defendant has a criminal record of Possession of Dangerous Drug. He will
K not be punished again for that offence. Nevertheless, it shows clearly that K
the defendant had committed the present case whilst on bail.
L L
M 15. Committing an offence whilst on bail is an aggravating factor. M
In the case of HKSAR v Wong Yun Fat [2017] 4 HKLRD 59, which
N N
concerns the sentencing of an offence of trafficking in dangerous drug
O committed whilst on bail for an offence of possession of dangerous drug, O
the Court of Appeal held that a 6 months’ imprisonment is an appropriate
P P
enhancement of starting point for such an aggravating factor:-
Q Q
“[48] It is clear from the authorities that even if the bail is only
R police bail the fact that the bailed person committed an offence R
whilst on bail is still to be regarded as an aggravating factor. The
S issue is not whether the sentence should be enhanced but, rather, S
by how much it should be enhanced. In the present case the
applicant later pleaded guilty to the possession offence for which
T he had been bailed and so he must have been aware of the T
likelihood of being prosecuted. In those circumstances his
conduct in engaging in trafficking in dangerous drugs, in the
U U
V V
-6-
A A
B words of the Court of Appeal in the Leung Ting Fung case, B
demonstrates “in terms of the offence, … a serious disregard for
C the law and, in terms of the offender, it evidences a persistence C
in offending.” We are of the view that in the circumstances of
the present case and in respect of this offender a further period
D of 6 months’ imprisonment is an appropriate enhancement. This D
results in a final starting point for count 1 of 11 years’
E
imprisonment.” E
F 16. I noted that the dangerous drugs involved in that case was ICE F
and the quantity is much more than the present case. In the circumstances,
G G
I am of the view that an enhancement of starting point for 3 months’
H imprisonment should be adopted. H
I I
17. On the other hand, Mr Cheung submits that I should take into
J account the defendant’s earlier sentence for Possession of Dangerous Drug J
and regard it had been heard together with the charges in the present
K K
proceedings when applying the totality principle.
L L
18. Section 6A(1) of the Drug Addiction Treatment Centres
M M
Ordinance, Cap.244 provides that:-
N N
“(1) If a person in respect of whom a detention order, a
O supervision order or a recall order is in force is sentenced to O
imprisonment—
P P
(a) ……
Q (b) for a term of more than 9 months (or in the case Q
of a detention order, supervision order or recall order
made before the commencement# of the Drug Addiction
R R
Treatment Centres (Amendment) Ordinance 1986 (24 of
1986), 2 years) or a new detention order is made in
S respect of him, the first-mentioned detention order, or the S
supervision order or recall order, as the case may be,
shall cease to have effect.”
T T
U U
V V
-7-
A A
B B
19. In light of the above, the DATC Order would cease to have
C effect on the defendant once I have passed on him a corresponding C
custodial sentence for Charge 2. In considering the question of totality,
D D
had the present case been dealt with on the same occasion at the time the
E previous offence was heard, a starting point of 12 months’ imprisonment E
or lower would be adopted for the previous offence (see HKSAR v Mok
F F
Cho Tik [2001] 1 HKC 261 at 267 B-E).
G G
20. In both the present case and the previous case, the defendant
H H
pleaded guilty to the offences he faced. The defendant would be entitled
I to a full one-third discount. Therefore, the sentence of the possession of I
dangerous drug would be reduced from 12 months to 8 months, had a
J J
starting point of 12-month been adopted. The fact, as it now stands, is that
K the defendant had already spent approximately 5 months in the DATC. I K
hasten to add that it is not necessarily helpful to compare the sentence of
L L
the detention order in DATC and a term of imprisonment in the context of
M this case. However, for the purpose of sentencing in the present case, I am M
prepared to take into account the time the defendant had spent on serving
N N
the current detention order in the DATC.
O O
P
21. That said, the offence of possession happened on a different P
occasion. It is clear that a partly consecutive sentence is appropriate. In
Q Q
the case of HKSAR v Choi Yiu Cho (unreported, CACC 158/2014, 19
R
November 2014), the sentencing judge adopted a starting point of 3½ R
years’ imprisonment for the charge of Trafficking in Dangerous Drug and
S S
18 months’ imprisonment for the charge of Possession of Dangerous Drug.
T The Court of Appeal reduced the sentence for the charge of possession T
U U
V V
-8-
A A
B B
from 18 months to 12 months and ordered 3 months’ imprisonment to be
C served consecutively to the sentence imposed on the charge of trafficking. C
D D
22. I shall bear these features in mind when I consider the
E principle of totality. E
F F
23. Having carefully considered all the circumstances, I shall
G sentence the defendant as follows:- G
H H
(a) Charge 1: 1 year starting point reduced to 8 months
I for his guilty plea; I
J J
(b) Charge 2: 60 month starting point reduced to 40
K months for his guilty plea; K
L L
(c) 3 months’ imprisonment should be added to the starting
M point to reflect the element of committing the offence M
whilst on bail and this is reduced to 2 months to reflect
N N
his guilty plea.
O O
24. I am of the view that Charge 1 and Charge 2 should be served
P P
concurrently.
Q Q
25. Taking into account the totality principle and the mitigations,
R R
especially his age, in favour of the defendant, a further 6-month reduction
S is given. I do not see that any further discount is justified. S
T T
U U
V V
-9-
A A
B B
26. This gives a total of 36 months’ imprisonment. In other
C words, the calculation for Charge 1 becomes 8m + 2m – 6m = 4 months C
and that for Charge 2 becomes 40m + 2m – 6m = 36 months.
D D
E 27. The defendant is sentenced to a total of 36 months’ E
imprisonment accordingly.
F F
G G
H H
I ( Charles J Chan ) I
Deputy District Judge
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V