A A
B DCCC 70/2015 B
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO. 70 OF 2015
E E
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F HKSAR F
v.
G G
IP TSZ YAU
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H H
Before: HH Judge Douglas T.H. Yau
I Date: 28th May 2015 at 12:24 pm I
Present: Mr. Philip William Swainston, Solicitor on fiat, for HKSAR
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Mr. Oliver Davies instructed by M/s Wong & Co,
K K
for the Defendant
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Offences: 1) Assaulting a police officer in the execution of his duty L
(襲擊執行職責的警務人員)
M M
2) Trafficking in a dangerous drug (販運危險藥物)
N 3) Possession of a dangerous drug (管有危險藥物) N
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Reasons for Sentence
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1. The defendant was convicted after trial of one count of assaulting a Q
Police officer in the due execution of his duty (charge 1), contrary
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to section 63 of the Police Force Ordinance, Cap.232; one count of
S trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of S
the Dangerous Drugs Ordinance, Cap.134, and one count of
T T
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A A
B possession of dangerous drugs, contrary to section 8(1)(a) of the B
same Ordinance.
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2. Particulars of the drug charges are that he on 9 th November 2014
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unlawfully trafficked in 154g of a powder which contained narcotic
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contents of 113.1g of ketamine (charge 2); and 11.7g of a powder
F
containing 8.2g of ketamine (charge 3), firstly outside room 409 of F
Shui Moon House, Tin Shui (2) Estate and then inside Room 409.
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The defendant was found not guilty of trafficking in the drugs in
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charge 3 but guilty of their possession. H
I Summary of facts I
3. Room 409 is the defendant’s residence. On the evening of 9 th
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November 2014, Police officers conducted an anti-narcotic
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operation outside the premises. The defendant came out of the room
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at around 7:52pm and the Police officers immediately revealed their L
Police identity. The defendant immediately tried to return into the
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room but was intercepted by the Police officers.
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4. One of the Police officers demanded to the defendant’s proof of
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identity, whereupon the defendant suddenly pushed PW3 in the
P chest, causing him to hit against the wall (charge 1). In the P
subsequent medical examination, the officer was found to have
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sustained abrasions on his left hand.
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5. The defendant was eventually subdued. Upon search, a plastic bag
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was found inside the defendant’s underpants. Inside the bag were a
T total of 12 plastic bags each containing some suspected dangerous T
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B drugs. The defendant said he had nothing to say under caution. B
Upon arrest, 5 keys and a mobile phone were found on the
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defendant.
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6. In execution of a search warrant, the Police officers entered and
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searched room 409. There was no one inside the room. The
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defendant pointed out his bedroom to the Police officers. Upon F
search of that room, a plastic bag containing some powder was
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found on a computer desk (charge 3). Cash of $21,000 and 2 mobile
H
phones were found on the same desk. H
I I
7. Under caution, the defendant claimed that the ketamine was for his
J self-consumption and the cash belonged to him. J
K K
8. Government Chemist examined the suspected drugs found on the
L defendant as well as from the defendant’s desk and confirmed that L
the 12 plastic bags found on the defendant contained a total of 154g
M M
of powder which contained 113.1g of ketamine; whereas the 11.7g
N of powder found on the defendant’s desk contained 8.2g of N
ketamine.
O O
P P
Previous convictions
Q 9. The defendant has a total of 20 criminal convictions from 12 court Q
appearances. 6 of those convictions were for possession of
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dangerous drugs. The defendant had been convicted of offences
S including assault occasioning actual bodily harm, criminal damage, S
taking conveyance without authority (2005 and 2011) and engaging
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in bookmaking. His latest convictions were on 10 October 2011 for
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A A
B taking conveyance without authority, using a motor vehicle on a B
road against third party risks, driving a motor vehicle with alcohol
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concentration above the prescribed limit and driving without a
D licence. He was also in breach of a suspended sentence which was D
imposed for the engaging in bookmaking conviction mentioned
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above.
F F
Mitigation
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10. Mr. Davies confirmed the correctness of the defendant’s antecedent
H statement and was very brief in mitigation. H
I I
11. Mr. Davies accepts that for the quantity of ketamine involved in
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charge 2, an application of the guidelines would lead to a sentence
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of between 6 to 7 years’ imprisonment. Mr. Davies submits that the K
sentence for the assault should be made concurrent to the sentence
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in charge 2, and that the sentence in charge 3 should in any event
M pale into insignificance when compared to the sentence in charge 2. M
N N
Sentencing guidelines
O O
12. The sentencing tariff for trafficking in ketamine was set down in the
P case of Secretary for Justice v Hii Siew Cheng (許守城) [2009] 1 P
HKLRD 1, CAAR7/2006. The tariff for sentence after trial for
Q Q
traffickers in ketamine of 50 to 300 grammes is that of 6 to 9 years’
R imprisonment. R
S Sentence S
T Charge 1 T
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B 13. The maximum sentence under section 63 of Cap.232 is a fine of B
$5000 and imprisonment for 6 months.
C C
D 14. The defendant’s assault was in the form of one push, which did not D
cause any serious injuries. The defendant was trying to escape when
E E
being apprehended. I find that the assault is at the lower end of the
F spectrum of seriousness. F
G G
15. I will adopt a starting point of 2 months’ imprisonment. Although
H the defendant has a lengthy conviction record, there is only one H
involving violence and that was back in 1997 when he was 14 years
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old. I do not find that as an aggravating factor.
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16. On the other hand, I also find that there are no mitigating factors.
K K
L
17. The defendant is sentenced to 2 months’ imprisonment on charge L
M
1. M
N Charge 2 N
18. The maximum sentence for trafficking in dangerous drugs is that of
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life imprisonment.
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19. The defendant committed the offence alone. This is the defendant’s
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first trafficking in dangerous drugs conviction. As Mr. Davies
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correctly pointed out, the circumstances of the trafficking were
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simple and there are no aggravating factors as to its commission. S
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B 20. For 113.1g of ketamine, I apply the tariff sentence and adopt a B
starting point of 81 months’ imprisonment.
C C
D 21. I also find that there are no mitigating factors to warrant a discount D
to the sentence.
E E
F
22. The defendant is sentenced to 81 months’ imprisonment on charge F
2.
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H
Charge 3 H
I
23. The maximum sentence for simple possession of dangerous drugs I
under section 8(1)(a) and (2) of the Dangerous Drugs Ordinance is
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that of a fine of $1,000,000 and imprisonment for 7 years.
K K
24. The amount of ketamine involved in this charge is 8.2g, which is
L L
not a large quantity. The drug was found inside the defendant’s
M home. M
N N
25. I will adopt a starting point of 12 months’ imprisonment.
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26. This is the defendant’s 7th conviction for possession of dangerous
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drugs. I find this an aggravating factor. For this, I will increase his
Q sentence by 2 months. Q
R 27. The defendant is therefore sentenced to 14 months’ imprisonment R
on charge 3.
S S
T Consecutive or concurrent T
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B 28. I find that the commission of charge 2, the trafficking charge, does B
not mean that the defendant also had to commit charge 1, the
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assaulting charge. I find that in principle the sentences for these two
D charges should run consecutively and I do so order. The total D
sentence for charge 1 and 2 is that of 83 months’ imprisonment.
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F Totality F
G 29. In relation to charge 3, bearing in mind the principle of totality and G
the sentencing jurisdiction of the District Court, I will order 1
H H
month of the sentence in charge 3 to be served consecutively to the
I sentence in charge 1 and 2, the balance concurrently. I
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30. The final sentence for the 3 charges is therefore (81+2+1= 84) 7
K years’ imprisonment. K
L L
M M
(Douglas T.H .Yau)
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District Judge
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