A A
DCCC 890/2015
B B
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C CRIMINAL CASE NO 890 OF 2015 C
D
---------------------- D
HKSAR
E E
v
F Lee Chi-ching F
G ---------------------- G
Before: HH Judge C P Pang
H Date: 30 June 2016 H
Present: Mr James Peter Chandler, Counsel on fiat, for HKSAR
Mr Oliver Davies, instructed by Wong & Co, for the
I defendant I
Offence: (1) Wilfully obstructing police officers in the due
J execution of their duties (故意阻撓在正當執行職務的警務人員) J
(2) Trafficking in a dangerous drug (販運危險藥物)
(3) Possession of an offensive weapon (管有攻擊性武器))
K K
---------------------
L L
Reasons for Sentence
M --------------------- M
N
1. The defendant pleaded guilty to three charges: Charge N
1, obstructing police officers; Charge 2, trafficking in
O dangerous drug; Charge 3, possession of offensive weapon. O
P 2. The facts admitted by the defendant are as follows. P
Q Q
Charge 1
R R
3. On 6 April 2015 at around 12.05 am, PC 7278 and PC 9407
S were outside Room 1601, Ching Yuet House, Ting Ching Estate, Tin S
Shui Wai (“the premises”). They saw the defendant took out keys
T to open the metal gate of the premises. When police officers T
revealed their police identities, the defendant immediately
U U
turned around and fled to the lobby on the same floor. She threw
CRT24/30.6.2016/SY 1 DCCC 890/2015/Sentence
V V
A A
the keys she held in her right hand out of the window in the
said lobby.
B B
C Charges 2 and 3 C
D 4. Police officers later located and retrieved the keys D
from the podium of the building. They gained entry into the
E E
premises using the keys. They conducted investigation and
searched inside the premises, during which the following items,
F F
inter alia, were seized from on top of a blue plastic box:
G G
(a) From inside a purple metal box, two resealable
H plastic bags containing a total of 6.99 grammes of H
a crystalline solid containing 6.9 grammes of
I I
methamphetamine hydrochloride, commonly known as
“Ice” (“the dangerous drug”);
J J
K
(b) One extendable baton; K
L (c) 205 empty resealable plastic bags; L
M (d) Two electronic scales; M
N N
5. The defendant was immediately arrested. Under caution,
she said that she possessed the dangerous drug for self-
O O
consumption and possessed the extendable baton for self-defence.
P P
6. The baton could be extended when it was flicked.
Q Q
7. The estimated street value of the dangerous drug is
R R
about HK$3,000.
S S
8. A police photographer later took 29 photos of the
T premises. T
U U
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V V
A A
9. The defendant is aged 25. She has criminal convictions
for possession of dangerous drug and trafficking in dangerous
B B
drug in 2008. The defendant’s antecedent statement reveals that
C she has separated with her husband since January 2015. She has a C
5-year-old daughter being looked after by the defendant’s
D mother. D
E E
10. In mitigation, Mr Davies, counsel for the defendant,
said the defendant was a part-time manicurist before she was
F F
arrested, earning around 5,000 to 6,000 dollars a month.
G G
11. The defendant was a drug user. It is said that a
H significant part of the dangerous drug in question was for her H
own consumption while she would sell some of them to her friends
I I
for a small profit to support her own drug habit.
J J
12. Mr Davies asks the court to pass concurrent sentences
K
for all the three charges as they were part and parcel of the K
defendant’s drug trafficking activity.
L L
Newton Hearing
M 13. As the claim of own consumption was not accepted by the M
prosecution, a Newton hearing was conducted and the defendant
N N
gave evidence on this issue. The defendant testified that she
started taking ketamine in about 2006. She quitted the drug
O O
habit when she was sent to a rehabilitation centre for the
P breach of a probation order in 2009. She started to take “Ice” P
in 2012. At the relevant time, she took “Ice” by inhaling the
Q smoke from an “Ice” pipe. She took it for five times a week, Q
each time for about “0.5 to 0.6”.
R R
14. The drug in question was bought from a person called Ah
S S
Kin in an amusement game centre for $1,500, about one or two
T days before the arrest. She had consumed about 0.3 in the T
morning of the day of arrest. She said she had an “Ice” pipe at
U home but it was thrown away by the police. U
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A A
15. Under cross-examination, the defendant said her “Ice”
B B
pipe was thrown into the blue bucket in the toilet as shown in
C photograph No 9 of the police photo album which is not disputed. C
It took place after her arrest and before the photographer took
D the pictures. When the photographs were taken at the premises, D
the “Ice” pipe was still in the blue bucket. She could not
E E
remember who threw the pipe into the bucket. She has never
complained to any courts about this misconduct of the police as
F F
she did not know she could do that. She also said she had always
G intended to give evidence in court about her own consumption of G
these drugs.
H H
16. While no complaint had been made, she once made “an
I I
inquiry” with a police officer who telephoned her to come to the
police station. She identified this officer as the officer
J J
assisting Mr Chandler, counsel on fiat, for the prosecution.
K
This officer is PC 9338. She asked him why her “Ice” pipe was K
thrown away and not submitted to the court as evidence.
L L
17. The defendant agreed that before the arrest, she was
M returning home with two men. These two men came with the M
intention of buying and consuming “Ice” at her home.
N N
18. The prosecution called PC 9338 and PC 9407 to give
O O
evidence in rebuttal. PC 9338 agreed that he once telephoned the
defendant to come to the police station as the investigation by
P P
the Special Duties Squad was inadequate. He intended to conduct
Q a videoed interview with the defendant, however, she was not Q
available for the interview. He could not remember whether the
R defendant said to him about an “Ice” pipe as it was a long time R
ago. On this basis, therefore, I accept the defendant might have
S S
mentioned about an “Ice” pipe to him.
T T
19. PC 9407 was the exhibit officer in this case. He said
U there was no paraphernalia for smoking dangerous drug found at U
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V V
A A
the premises. He denied that any police officers at the premises
threw away the defendant’s “Ice” pipe.
B B
C 20. Whether there was an “Ice” pipe or any smoking C
paraphernalia at the defendant’s premises at the time of arrest
D is an important fact in considering whether part of the seized D
drug was for the defendant’s own consumption. The burden of
E E
proof is on the prosecution to prove beyond reasonable doubt
that there was no such pipe at the premises. It is noted that
F F
upon arrest, the defendant said she possessed the dangerous drug
G for her own consumption. G
H 21. However, I find the evidence of the defendant contrary H
to logic and common sense. I cannot see any good reasons why the
I I
police officers at the premises should put the defendant’s “Ice”
pipe into a bucket in the toilet. The police officers at the
J J
premises would not know what the defendant would say in her
K
defence in court. They could not foresee whether the existence K
of the “Ice” pipe would help the police to prove their case or
L not. There is no point for them to conceal this evidence. L
M 22. Even if the police wanted to destroy the evidence of M
the existence of an “Ice” pipe, it is improbable that they would
N N
only throw it in a toilet bucket and let the defendant and the
photographer see it in there.
O O
23. The defendant must have seen her lawyers in the
P P
Magistrates’ Court and in the District Court prior to the
Q hearing before me. She said she had always intended to give Q
evidence about her consumption of part of the drugs in question.
R The existence of the “Ice” pipe must have occurred to her as a R
piece of important evidence to prove that some of the drugs were
S S
for her own consumption. If it occurred to her that she should
make an “inquiry” with the police officer who took over the
T T
investigation of the case, it is improbable that no complaint
U about the “Ice” pipe being thrown away by police officers has U
CRT24/30.6.2016/SY 5 DCCC 890/2015/Sentence
V V
A A
ever been made by the defendant to any magistrates or judges
prior to the proceedings before me.
B B
C 24. I find the evidence of the defendant incredible and C
reject it. I accept the evidence of PC 9407. The prosecution
D has proved that no “Ice” pipe was found at the premises of the D
defendant.
E E
25. Two electronic scales and 205 empty resealable plastic
F bags were found at the defendant’s home. However, no equipment F
for taking the “Ice” was found. The defendant’s previous
G G
convictions related to her addiction to ketamine. Apart from her
assertion in court, there is no evidence of her addiction to
H H
“Ice”.
I I
26. Having considered all the evidence, I reject the
J defendant’s claim that part of the “Ice” seized was for the J
defendant’s own consumption.
K K
Charge 2
L L
27. Trafficking in a dangerous drug is a very serious
M offence. The Court of Appeal has set down sentencing tariff for M
trafficking in “Ice” in AG v Ching Kwok Hung [1991] 2 HKLR 125,
N as revised in HKSAR v Tam Yi Chun (No 2) [2014] 4 HKC 256. The N
imprisonment band for trafficking of “Ice” up to 10 grammes is 3
O O
to 7 years’ imprisonment.
P P
28. The quantity of “Ice” involved in this case was 6.9
Q grammes. I take 66 months’ imprisonment as the starting point Q
for Charge 2.
R R
Charge 1
S S
29. The obstruction is a minor one. I take 6 weeks’
imprisonment as the starting point.
T T
U Charge 3 U
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V V
A A
30. The charge is brought under the Summary Offences
Ordinance. The defendant possessed it at home in connection with
B B
her dealing with dangerous drug. I take 6 months’ imprisonment
C as the starting point. C
D 31. The usual discount for a timely plea of guilty is one- D
third reduction. The defendant will get the full one-third
E E
discount for Charges 1 and 3. However, a Newton hearing has been
conducted and I reject the defendant’s evidence. Time has been
F F
wasted and the defendant’s degree of remorse shown by her plea
G is diluted. She should be given a reduced sentence discount (see G
HKSAR v Abdallah Anwar [2009] 2 HKC 197, CACC 304/2008). The
H defendant is given a discount of 20 months for charge 2. H
I I
The Sentence
32. The defendant is sentenced as follows: Charge 1, 4
J J
weeks’ imprisonment; Charge 2, 46 months’ imprisonment; Charge
K
3, 4 months’ imprisonment. K
L 33. Charge 3 is a separate offence. However, taking into L
account the principle of totality, I order that all the
M sentences in the three charges to run concurrently. The total M
term of the sentences is therefore 3 years and 10 months’
N N
imprisonment.
O O
P P
(C. P. Pang)
Q District Judge Q
R R
S S
T T
U U
CRT24/30.6.2016/SY 7 DCCC 890/2015/Sentence
V V
A A
DCCC 890/2015
B B
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C CRIMINAL CASE NO 890 OF 2015 C
D
---------------------- D
HKSAR
E E
v
F Lee Chi-ching F
G ---------------------- G
Before: HH Judge C P Pang
H Date: 30 June 2016 H
Present: Mr James Peter Chandler, Counsel on fiat, for HKSAR
Mr Oliver Davies, instructed by Wong & Co, for the
I defendant I
Offence: (1) Wilfully obstructing police officers in the due
J execution of their duties (故意阻撓在正當執行職務的警務人員) J
(2) Trafficking in a dangerous drug (販運危險藥物)
(3) Possession of an offensive weapon (管有攻擊性武器))
K K
---------------------
L L
Reasons for Sentence
M --------------------- M
N
1. The defendant pleaded guilty to three charges: Charge N
1, obstructing police officers; Charge 2, trafficking in
O dangerous drug; Charge 3, possession of offensive weapon. O
P 2. The facts admitted by the defendant are as follows. P
Q Q
Charge 1
R R
3. On 6 April 2015 at around 12.05 am, PC 7278 and PC 9407
S were outside Room 1601, Ching Yuet House, Ting Ching Estate, Tin S
Shui Wai (“the premises”). They saw the defendant took out keys
T to open the metal gate of the premises. When police officers T
revealed their police identities, the defendant immediately
U U
turned around and fled to the lobby on the same floor. She threw
CRT24/30.6.2016/SY 1 DCCC 890/2015/Sentence
V V
A A
the keys she held in her right hand out of the window in the
said lobby.
B B
C Charges 2 and 3 C
D 4. Police officers later located and retrieved the keys D
from the podium of the building. They gained entry into the
E E
premises using the keys. They conducted investigation and
searched inside the premises, during which the following items,
F F
inter alia, were seized from on top of a blue plastic box:
G G
(a) From inside a purple metal box, two resealable
H plastic bags containing a total of 6.99 grammes of H
a crystalline solid containing 6.9 grammes of
I I
methamphetamine hydrochloride, commonly known as
“Ice” (“the dangerous drug”);
J J
K
(b) One extendable baton; K
L (c) 205 empty resealable plastic bags; L
M (d) Two electronic scales; M
N N
5. The defendant was immediately arrested. Under caution,
she said that she possessed the dangerous drug for self-
O O
consumption and possessed the extendable baton for self-defence.
P P
6. The baton could be extended when it was flicked.
Q Q
7. The estimated street value of the dangerous drug is
R R
about HK$3,000.
S S
8. A police photographer later took 29 photos of the
T premises. T
U U
CRT24/30.6.2016/SY 2 DCCC 890/2015/Sentence
V V
A A
9. The defendant is aged 25. She has criminal convictions
for possession of dangerous drug and trafficking in dangerous
B B
drug in 2008. The defendant’s antecedent statement reveals that
C she has separated with her husband since January 2015. She has a C
5-year-old daughter being looked after by the defendant’s
D mother. D
E E
10. In mitigation, Mr Davies, counsel for the defendant,
said the defendant was a part-time manicurist before she was
F F
arrested, earning around 5,000 to 6,000 dollars a month.
G G
11. The defendant was a drug user. It is said that a
H significant part of the dangerous drug in question was for her H
own consumption while she would sell some of them to her friends
I I
for a small profit to support her own drug habit.
J J
12. Mr Davies asks the court to pass concurrent sentences
K
for all the three charges as they were part and parcel of the K
defendant’s drug trafficking activity.
L L
Newton Hearing
M 13. As the claim of own consumption was not accepted by the M
prosecution, a Newton hearing was conducted and the defendant
N N
gave evidence on this issue. The defendant testified that she
started taking ketamine in about 2006. She quitted the drug
O O
habit when she was sent to a rehabilitation centre for the
P breach of a probation order in 2009. She started to take “Ice” P
in 2012. At the relevant time, she took “Ice” by inhaling the
Q smoke from an “Ice” pipe. She took it for five times a week, Q
each time for about “0.5 to 0.6”.
R R
14. The drug in question was bought from a person called Ah
S S
Kin in an amusement game centre for $1,500, about one or two
T days before the arrest. She had consumed about 0.3 in the T
morning of the day of arrest. She said she had an “Ice” pipe at
U home but it was thrown away by the police. U
CRT24/30.6.2016/SY 3 DCCC 890/2015/Sentence
V V
A A
15. Under cross-examination, the defendant said her “Ice”
B B
pipe was thrown into the blue bucket in the toilet as shown in
C photograph No 9 of the police photo album which is not disputed. C
It took place after her arrest and before the photographer took
D the pictures. When the photographs were taken at the premises, D
the “Ice” pipe was still in the blue bucket. She could not
E E
remember who threw the pipe into the bucket. She has never
complained to any courts about this misconduct of the police as
F F
she did not know she could do that. She also said she had always
G intended to give evidence in court about her own consumption of G
these drugs.
H H
16. While no complaint had been made, she once made “an
I I
inquiry” with a police officer who telephoned her to come to the
police station. She identified this officer as the officer
J J
assisting Mr Chandler, counsel on fiat, for the prosecution.
K
This officer is PC 9338. She asked him why her “Ice” pipe was K
thrown away and not submitted to the court as evidence.
L L
17. The defendant agreed that before the arrest, she was
M returning home with two men. These two men came with the M
intention of buying and consuming “Ice” at her home.
N N
18. The prosecution called PC 9338 and PC 9407 to give
O O
evidence in rebuttal. PC 9338 agreed that he once telephoned the
defendant to come to the police station as the investigation by
P P
the Special Duties Squad was inadequate. He intended to conduct
Q a videoed interview with the defendant, however, she was not Q
available for the interview. He could not remember whether the
R defendant said to him about an “Ice” pipe as it was a long time R
ago. On this basis, therefore, I accept the defendant might have
S S
mentioned about an “Ice” pipe to him.
T T
19. PC 9407 was the exhibit officer in this case. He said
U there was no paraphernalia for smoking dangerous drug found at U
CRT24/30.6.2016/SY 4 DCCC 890/2015/Sentence
V V
A A
the premises. He denied that any police officers at the premises
threw away the defendant’s “Ice” pipe.
B B
C 20. Whether there was an “Ice” pipe or any smoking C
paraphernalia at the defendant’s premises at the time of arrest
D is an important fact in considering whether part of the seized D
drug was for the defendant’s own consumption. The burden of
E E
proof is on the prosecution to prove beyond reasonable doubt
that there was no such pipe at the premises. It is noted that
F F
upon arrest, the defendant said she possessed the dangerous drug
G for her own consumption. G
H 21. However, I find the evidence of the defendant contrary H
to logic and common sense. I cannot see any good reasons why the
I I
police officers at the premises should put the defendant’s “Ice”
pipe into a bucket in the toilet. The police officers at the
J J
premises would not know what the defendant would say in her
K
defence in court. They could not foresee whether the existence K
of the “Ice” pipe would help the police to prove their case or
L not. There is no point for them to conceal this evidence. L
M 22. Even if the police wanted to destroy the evidence of M
the existence of an “Ice” pipe, it is improbable that they would
N N
only throw it in a toilet bucket and let the defendant and the
photographer see it in there.
O O
23. The defendant must have seen her lawyers in the
P P
Magistrates’ Court and in the District Court prior to the
Q hearing before me. She said she had always intended to give Q
evidence about her consumption of part of the drugs in question.
R The existence of the “Ice” pipe must have occurred to her as a R
piece of important evidence to prove that some of the drugs were
S S
for her own consumption. If it occurred to her that she should
make an “inquiry” with the police officer who took over the
T T
investigation of the case, it is improbable that no complaint
U about the “Ice” pipe being thrown away by police officers has U
CRT24/30.6.2016/SY 5 DCCC 890/2015/Sentence
V V
A A
ever been made by the defendant to any magistrates or judges
prior to the proceedings before me.
B B
C 24. I find the evidence of the defendant incredible and C
reject it. I accept the evidence of PC 9407. The prosecution
D has proved that no “Ice” pipe was found at the premises of the D
defendant.
E E
25. Two electronic scales and 205 empty resealable plastic
F bags were found at the defendant’s home. However, no equipment F
for taking the “Ice” was found. The defendant’s previous
G G
convictions related to her addiction to ketamine. Apart from her
assertion in court, there is no evidence of her addiction to
H H
“Ice”.
I I
26. Having considered all the evidence, I reject the
J defendant’s claim that part of the “Ice” seized was for the J
defendant’s own consumption.
K K
Charge 2
L L
27. Trafficking in a dangerous drug is a very serious
M offence. The Court of Appeal has set down sentencing tariff for M
trafficking in “Ice” in AG v Ching Kwok Hung [1991] 2 HKLR 125,
N as revised in HKSAR v Tam Yi Chun (No 2) [2014] 4 HKC 256. The N
imprisonment band for trafficking of “Ice” up to 10 grammes is 3
O O
to 7 years’ imprisonment.
P P
28. The quantity of “Ice” involved in this case was 6.9
Q grammes. I take 66 months’ imprisonment as the starting point Q
for Charge 2.
R R
Charge 1
S S
29. The obstruction is a minor one. I take 6 weeks’
imprisonment as the starting point.
T T
U Charge 3 U
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V V
A A
30. The charge is brought under the Summary Offences
Ordinance. The defendant possessed it at home in connection with
B B
her dealing with dangerous drug. I take 6 months’ imprisonment
C as the starting point. C
D 31. The usual discount for a timely plea of guilty is one- D
third reduction. The defendant will get the full one-third
E E
discount for Charges 1 and 3. However, a Newton hearing has been
conducted and I reject the defendant’s evidence. Time has been
F F
wasted and the defendant’s degree of remorse shown by her plea
G is diluted. She should be given a reduced sentence discount (see G
HKSAR v Abdallah Anwar [2009] 2 HKC 197, CACC 304/2008). The
H defendant is given a discount of 20 months for charge 2. H
I I
The Sentence
32. The defendant is sentenced as follows: Charge 1, 4
J J
weeks’ imprisonment; Charge 2, 46 months’ imprisonment; Charge
K
3, 4 months’ imprisonment. K
L 33. Charge 3 is a separate offence. However, taking into L
account the principle of totality, I order that all the
M sentences in the three charges to run concurrently. The total M
term of the sentences is therefore 3 years and 10 months’
N N
imprisonment.
O O
P P
(C. P. Pang)
Q District Judge Q
R R
S S
T T
U U
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V V