A A
B DCCC 1026/2015 B
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO. 1026 OF 2015
E E
-----------------------------------
F HKSAR F
v.
G G
WONG WAI SUN
-----------------------------------
H H
Before: HH Judge Douglas T.H. Yau
I Date: 22 March 2016 at 11:01 am I
Present: Mr. Yip King-sum, Counsel on fiat, for HKSAR
J J
Mr. Kevin Wong instructed by M/s Huen & Partners,
K K
assigned by DLA, for the Defendant
L
Offences: [1] Resisting police officers in the execution of their duties L
(抗拒執行職責的警務人員)
M M
[2] Trafficking in a dangerous drug (販運危險藥物)
N ---------------------------- N
Reasons for Sentence
O O
----------------------------
P 1. The defendant pleaded guilty to one charge of resisting Police P
officers 1 (charge 1) and one charge of trafficking in dangerous
Q Q
2
drugs (charge 2).
R R
Summary of facts
S S
T T
1
contrary to s.63 of the Police Force Ordinance, Cap. 232
2
contrary to s.4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134
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A A
B 2. The defendant was the driver of a private vehicle RA1352 at about B
02:29am on 20th August 2015.
C C
D 3. Patrolling police officer PW1 saw RA1352 circled around the D
Causeway Bay area twice and then stopped outside CEO Neway
E E
karaoke on Sugar Street. A man emerged from the building and got
F into the front passenger seat for about 10 seconds and left. The F
defendant then drove off along Gloucester Road.
G G
H 4. Feeling suspicious, PW1 alerted his colleagues about the vehicle. H
At about 2:30am, PW2 and PW3 found the vehicle parked on
I I
Gloucester Road northbound near Great George Street. The
J uniformed Police officers approached the vehicle and told the J
defendant to turn off the engine. The defendant complied.
K K
L L
5. PW3 walked around the vehicle for inspection. PW2 was about to
M
make enquiries with the defendant through the rolled down window M
on the driver’s side when the defendant suddenly started the engine.
N N
PW2 immediately raised his voice and told the defendant to stop the
O vehicle and turn off the engine. PW2 managed to reach into the car O
and switched off the engine and pulled out the car key.
P P
Q 6. The defendant used his right hand to pull PW2’s wrist to stop him Q
from taking out the car key. The defendant also tried to switch the
R R
engine back on. PW2 saw the defendant holding a package wrapped
S in white tissue with his left hand. S
T T
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A A
B 7. PW3 heard the commotion and went to assist. They pulled the B
defendant out of the vehicle through the rolled down window of the
C C
driver’s side. The defendant struggled outside the car and threw the
D white package that he was holding under the car. PW1, 2 and 3 D
eventually managed to subdue the defendant.
E E
F 8. The white package was later recovered. Wrapped inside was one F
re-sealable transparent plastic bag containing multiple smaller
G G
re-sealable plastic bags. In all, there were 25 plastic bags containing
H a total of 5.74g of solid with a narcotic content of 5.04g of cocaine. H
I I
9. Upon search, 4 mobile phones and cash of $6,102 was found on the
J defendant. J
K K
10. The Police officers involved in the struggle suffered minor injuries
L L
as a result. They were treated and discharged on the same day.
M M
Previous convictions
N N
11. The defendant has 5 previous convictions, 4 of which were for
O O
trafficking in dangerous drugs and 1 for robbery. His last conviction
P
was in June 2014 when he was sentenced to 28 month’s P
imprisonment in the District Court for trafficking in dangerous
Q Q
drugs.
R R
Mitigation
S S
12. The defendant is 33 years old. He was born and educated in Hong
T T
Kong up to Form 3 level.
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A A
B 13. Mr. Wong for the defendant submitted that since the defendant’s B
discharge in his first trafficking in dangerous drugs conviction in
C C
about 2009, he started to take dangerous drugs including cocaine.
D He has been an on and off abuser, not a deep rooted drug addict. D
E E
14. After his release in 2015, the defendant started to work as a casual
F construction site worker, mainly to line up telephone lines, earning F
about $12,000 per month.
G G
H 15. The defendant got divorced during his present remand. At the time H
of the offence, the defendant was living with his parents in public
I I
housing.
J J
16. It was put forward in mitigation that about half of the cocaine in the
K K
present case was bought for the defendant’s self-consumption. The
L L
defendant bought the cocaine on the night of his arrest from the
M
person who went into his car that night for $8,000. M
N N
17. The purchase money for the drugs came from the defendant’s father
O and the defendant’s friend. Before the defendant was sentenced in O
2014, he had left his savings with his father who returned the money
P P
to the defendant, amounting to about $20,000 to $30,000.
Q Q
18. The defendant was also able to obtain repayment of a loan made to
R R
his friend which was about $10,000.
S S
19. The defendant was released from jail around 13th August 2015. He
T T
committed the present offences around 7 days afterwards.
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A A
B Sentence B
C 20. The maximum sentence for the offence of resisting Police officers C
in the execution of their duties is that of a fine of $5000 and
D D
imprisonment of 6 months.
E E
21. The maximum sentence on conviction upon indictment for the
F F
offence of trafficking in dangerous drugs is that of life
G imprisonment. G
H H
22. It is not disputed that the tariff sentence for trafficking between 0 to
I 10g of cocaine is that of 2 to 5 years’ imprisonment 3. I
J J
Charge 1
K K
23. In relation to charge 1, the defendant’s resisting began when he
L pulled PW2’s wrist to stop him from taking out the car key, and L
continued with his struggle outside the car. It ended when the police
M M
officers managed to subdue him by pressing him onto the ground.
N N
24. The defendant’s resisting is not the worst of its kind. He does not
O O
have similar previous convictions. The only conviction involving
P violence was for robbery but that was almost 18 years ago and I do P
not find that as an aggravating factor.
Q Q
R 25. Although the Police officers did suffer injuries, they were minor R
injuries.
S S
3
T Sentencing guidelines for trafficking in cocaine is the same as the guidelines for trafficking in heroin T
contained in R v Lau Tak-ming and Others [1990] 2 HKLR 370, as confirmed in Attorney General v
Pedro Nel Rojas [1994] 1 HKC 342, CAAR 15/1993.
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A A
B 26. I will order the defendant to pay a fine of $4,000, to be paid within 2 B
months.
C C
D Charge 2 D
E 27. In relation to charge 2, the quantity of cocaine involved is 5.04g. E
Applying the tariff sentence mentioned above, I adopt a starting
F F
point of 42 months’ imprisonment.
G G
28. This is the defendant’s fifth conviction for trafficking in dangerous
H H
drugs. He committed the present offences just around 7 days after
I his latest release from prison. I was told that at the time of his I
release, his father returned to the defendant his savings of around
J J
$20,000 to $30,000. The defendant was also able to secure the
K repayment of a loan to his friend in the amount of $10,000. Since K
the defendant was staying with his parents, he was not in any
L L
immediate financial difficulties at the time of his release. Yet, he
M decided to go straight back into trafficking. The defendant is a M
repeated offender and I find this an aggravating factor.
N N
O O
29. For this aggravating factor, I will increase the sentence by 6 months,
P
taking the sentence to 48 months’ imprisonment. P
Q Q
Self-consumption
R 30. As pointed out by Mr. Wong, the case of HKSAR v Chow Chun R
Sang [2012] 2 HKLRD 1121 provides guidance to the court when
S S
T T
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A A
B sentencing defendants who claim that part of the dangerous drugs is B
for their self-consumption:
C C
“19. We are of the view that in drug trafficking cases,
D D
when all or part of the drugs are intended for the
E
trafficker’s own consumption, the ensuing discount to E
F
sentence should, depending on circumstances, fall F
somewhere between 10% and 25% of the basic starting
G G
point. In determining the extent of discount in a
H
particular case, the court should have regard to factors H
including the total quantities of the drugs involved,
I I
proportion of the drugs intended for self-use, the
J nature of the drugs, whether the drug trafficking was J
for financial gain, whether the trafficking was
K K
organized and premeditated, and the background and
L criminal record of the defendant. We need to L
emphasize that unless the judge has erred in principle,
M M
the appellate court should not interfere with a discount
N to sentence given by the judge on account of N
self-consumption of part of the drugs a defendant
O O
trafficked in.”
P P
31. The defendant claimed that about half of the cocaine seized was for
Q Q
his self-consumption.
R R
32. There is no direct evidence that the trafficking would be for
S S
financial gain. There is also no evidence as to whether the
T defendant was involved in premeditated and organized trafficking. T
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A A
B 33. The defendant had been in prison for slightly more than 13 months B
prior to his commission of the present offences. Assuming the
C C
defendant did not have access to drugs while incarcerated, and
D given that Mr. Wong had told me that the defendant was only an D
“on and off” drug user and not a deep rooted drug addict, the
E E
amount of drugs that the defendant needed should not be too much.
F Whatever amount he decided to keep for himself, it was more likely F
a matter of choice rather than compulsion.
G G
H 34. Having considered the circumstances of the defendant’s case, I find H
that an appropriate discount is that of 10% at 4.8 months. I will
I I
reduce the sentence to that of 43 months’ imprisonment.
J J
35. The defendant is then granted the usual one-third discount for his
K K
guilty plea and sentenced to 28 months and 2 weeks’
L L
imprisonment.
M M
Exhibits
N N
36. The prosecution’s application to confiscate the vehicle that the
O O
defendant was driving at the time of his arrest was opposed by the
P
defendant. P
Q Q
37. I find that whether on the defendant’s version of fact, that is to say,
R
he was delivered the drugs by someone in the car, or on the R
prosecution’s case, that is to say, the defendant was using the car to
S S
get around while trafficking in the cocaine, the car was definitely
T being used in connection to the trafficking, either by the person T
selling to the defendant, or by the defendant selling to others.
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- 9 -
A A
B 38. Therefore, pursuant to s.56 of the Dangerous Drugs Ordinance, Cap. B
134, I order that the vehicle and its ignition key be forfeited to the
C C
Government.
D D
39. There was no objection to the prosecution’s application of disposal
E E
for the other items and I made an order in the same terms.
F F
G G
H
(Douglas T.H .Yau) H
District Judge
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
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A A
B DCCC 1026/2015 B
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO. 1026 OF 2015
E E
-----------------------------------
F HKSAR F
v.
G G
WONG WAI SUN
-----------------------------------
H H
Before: HH Judge Douglas T.H. Yau
I Date: 22 March 2016 at 11:01 am I
Present: Mr. Yip King-sum, Counsel on fiat, for HKSAR
J J
Mr. Kevin Wong instructed by M/s Huen & Partners,
K K
assigned by DLA, for the Defendant
L
Offences: [1] Resisting police officers in the execution of their duties L
(抗拒執行職責的警務人員)
M M
[2] Trafficking in a dangerous drug (販運危險藥物)
N ---------------------------- N
Reasons for Sentence
O O
----------------------------
P 1. The defendant pleaded guilty to one charge of resisting Police P
officers 1 (charge 1) and one charge of trafficking in dangerous
Q Q
2
drugs (charge 2).
R R
Summary of facts
S S
T T
1
contrary to s.63 of the Police Force Ordinance, Cap. 232
2
contrary to s.4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134
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- 2 -
A A
B 2. The defendant was the driver of a private vehicle RA1352 at about B
02:29am on 20th August 2015.
C C
D 3. Patrolling police officer PW1 saw RA1352 circled around the D
Causeway Bay area twice and then stopped outside CEO Neway
E E
karaoke on Sugar Street. A man emerged from the building and got
F into the front passenger seat for about 10 seconds and left. The F
defendant then drove off along Gloucester Road.
G G
H 4. Feeling suspicious, PW1 alerted his colleagues about the vehicle. H
At about 2:30am, PW2 and PW3 found the vehicle parked on
I I
Gloucester Road northbound near Great George Street. The
J uniformed Police officers approached the vehicle and told the J
defendant to turn off the engine. The defendant complied.
K K
L L
5. PW3 walked around the vehicle for inspection. PW2 was about to
M
make enquiries with the defendant through the rolled down window M
on the driver’s side when the defendant suddenly started the engine.
N N
PW2 immediately raised his voice and told the defendant to stop the
O vehicle and turn off the engine. PW2 managed to reach into the car O
and switched off the engine and pulled out the car key.
P P
Q 6. The defendant used his right hand to pull PW2’s wrist to stop him Q
from taking out the car key. The defendant also tried to switch the
R R
engine back on. PW2 saw the defendant holding a package wrapped
S in white tissue with his left hand. S
T T
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- 3 -
A A
B 7. PW3 heard the commotion and went to assist. They pulled the B
defendant out of the vehicle through the rolled down window of the
C C
driver’s side. The defendant struggled outside the car and threw the
D white package that he was holding under the car. PW1, 2 and 3 D
eventually managed to subdue the defendant.
E E
F 8. The white package was later recovered. Wrapped inside was one F
re-sealable transparent plastic bag containing multiple smaller
G G
re-sealable plastic bags. In all, there were 25 plastic bags containing
H a total of 5.74g of solid with a narcotic content of 5.04g of cocaine. H
I I
9. Upon search, 4 mobile phones and cash of $6,102 was found on the
J defendant. J
K K
10. The Police officers involved in the struggle suffered minor injuries
L L
as a result. They were treated and discharged on the same day.
M M
Previous convictions
N N
11. The defendant has 5 previous convictions, 4 of which were for
O O
trafficking in dangerous drugs and 1 for robbery. His last conviction
P
was in June 2014 when he was sentenced to 28 month’s P
imprisonment in the District Court for trafficking in dangerous
Q Q
drugs.
R R
Mitigation
S S
12. The defendant is 33 years old. He was born and educated in Hong
T T
Kong up to Form 3 level.
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- 4 -
A A
B 13. Mr. Wong for the defendant submitted that since the defendant’s B
discharge in his first trafficking in dangerous drugs conviction in
C C
about 2009, he started to take dangerous drugs including cocaine.
D He has been an on and off abuser, not a deep rooted drug addict. D
E E
14. After his release in 2015, the defendant started to work as a casual
F construction site worker, mainly to line up telephone lines, earning F
about $12,000 per month.
G G
H 15. The defendant got divorced during his present remand. At the time H
of the offence, the defendant was living with his parents in public
I I
housing.
J J
16. It was put forward in mitigation that about half of the cocaine in the
K K
present case was bought for the defendant’s self-consumption. The
L L
defendant bought the cocaine on the night of his arrest from the
M
person who went into his car that night for $8,000. M
N N
17. The purchase money for the drugs came from the defendant’s father
O and the defendant’s friend. Before the defendant was sentenced in O
2014, he had left his savings with his father who returned the money
P P
to the defendant, amounting to about $20,000 to $30,000.
Q Q
18. The defendant was also able to obtain repayment of a loan made to
R R
his friend which was about $10,000.
S S
19. The defendant was released from jail around 13th August 2015. He
T T
committed the present offences around 7 days afterwards.
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- 5 -
A A
B Sentence B
C 20. The maximum sentence for the offence of resisting Police officers C
in the execution of their duties is that of a fine of $5000 and
D D
imprisonment of 6 months.
E E
21. The maximum sentence on conviction upon indictment for the
F F
offence of trafficking in dangerous drugs is that of life
G imprisonment. G
H H
22. It is not disputed that the tariff sentence for trafficking between 0 to
I 10g of cocaine is that of 2 to 5 years’ imprisonment 3. I
J J
Charge 1
K K
23. In relation to charge 1, the defendant’s resisting began when he
L pulled PW2’s wrist to stop him from taking out the car key, and L
continued with his struggle outside the car. It ended when the police
M M
officers managed to subdue him by pressing him onto the ground.
N N
24. The defendant’s resisting is not the worst of its kind. He does not
O O
have similar previous convictions. The only conviction involving
P violence was for robbery but that was almost 18 years ago and I do P
not find that as an aggravating factor.
Q Q
R 25. Although the Police officers did suffer injuries, they were minor R
injuries.
S S
3
T Sentencing guidelines for trafficking in cocaine is the same as the guidelines for trafficking in heroin T
contained in R v Lau Tak-ming and Others [1990] 2 HKLR 370, as confirmed in Attorney General v
Pedro Nel Rojas [1994] 1 HKC 342, CAAR 15/1993.
U U
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V V
- 6 -
A A
B 26. I will order the defendant to pay a fine of $4,000, to be paid within 2 B
months.
C C
D Charge 2 D
E 27. In relation to charge 2, the quantity of cocaine involved is 5.04g. E
Applying the tariff sentence mentioned above, I adopt a starting
F F
point of 42 months’ imprisonment.
G G
28. This is the defendant’s fifth conviction for trafficking in dangerous
H H
drugs. He committed the present offences just around 7 days after
I his latest release from prison. I was told that at the time of his I
release, his father returned to the defendant his savings of around
J J
$20,000 to $30,000. The defendant was also able to secure the
K repayment of a loan to his friend in the amount of $10,000. Since K
the defendant was staying with his parents, he was not in any
L L
immediate financial difficulties at the time of his release. Yet, he
M decided to go straight back into trafficking. The defendant is a M
repeated offender and I find this an aggravating factor.
N N
O O
29. For this aggravating factor, I will increase the sentence by 6 months,
P
taking the sentence to 48 months’ imprisonment. P
Q Q
Self-consumption
R 30. As pointed out by Mr. Wong, the case of HKSAR v Chow Chun R
Sang [2012] 2 HKLRD 1121 provides guidance to the court when
S S
T T
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- 7 -
A A
B sentencing defendants who claim that part of the dangerous drugs is B
for their self-consumption:
C C
“19. We are of the view that in drug trafficking cases,
D D
when all or part of the drugs are intended for the
E
trafficker’s own consumption, the ensuing discount to E
F
sentence should, depending on circumstances, fall F
somewhere between 10% and 25% of the basic starting
G G
point. In determining the extent of discount in a
H
particular case, the court should have regard to factors H
including the total quantities of the drugs involved,
I I
proportion of the drugs intended for self-use, the
J nature of the drugs, whether the drug trafficking was J
for financial gain, whether the trafficking was
K K
organized and premeditated, and the background and
L criminal record of the defendant. We need to L
emphasize that unless the judge has erred in principle,
M M
the appellate court should not interfere with a discount
N to sentence given by the judge on account of N
self-consumption of part of the drugs a defendant
O O
trafficked in.”
P P
31. The defendant claimed that about half of the cocaine seized was for
Q Q
his self-consumption.
R R
32. There is no direct evidence that the trafficking would be for
S S
financial gain. There is also no evidence as to whether the
T defendant was involved in premeditated and organized trafficking. T
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- 8 -
A A
B 33. The defendant had been in prison for slightly more than 13 months B
prior to his commission of the present offences. Assuming the
C C
defendant did not have access to drugs while incarcerated, and
D given that Mr. Wong had told me that the defendant was only an D
“on and off” drug user and not a deep rooted drug addict, the
E E
amount of drugs that the defendant needed should not be too much.
F Whatever amount he decided to keep for himself, it was more likely F
a matter of choice rather than compulsion.
G G
H 34. Having considered the circumstances of the defendant’s case, I find H
that an appropriate discount is that of 10% at 4.8 months. I will
I I
reduce the sentence to that of 43 months’ imprisonment.
J J
35. The defendant is then granted the usual one-third discount for his
K K
guilty plea and sentenced to 28 months and 2 weeks’
L L
imprisonment.
M M
Exhibits
N N
36. The prosecution’s application to confiscate the vehicle that the
O O
defendant was driving at the time of his arrest was opposed by the
P
defendant. P
Q Q
37. I find that whether on the defendant’s version of fact, that is to say,
R
he was delivered the drugs by someone in the car, or on the R
prosecution’s case, that is to say, the defendant was using the car to
S S
get around while trafficking in the cocaine, the car was definitely
T being used in connection to the trafficking, either by the person T
selling to the defendant, or by the defendant selling to others.
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V V
- 9 -
A A
B 38. Therefore, pursuant to s.56 of the Dangerous Drugs Ordinance, Cap. B
134, I order that the vehicle and its ignition key be forfeited to the
C C
Government.
D D
39. There was no objection to the prosecution’s application of disposal
E E
for the other items and I made an order in the same terms.
F F
G G
H
(Douglas T.H .Yau) H
District Judge
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
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V V