區域法院（刑事）Deputy District Judge Charles J. Chan26/10/2018[2018] HKDC 1335
DCCC318/2018
A A
B DCCC 318/2018 B
[2018] HKDC 1335
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO. 318 OF 2018 E
-----------------------------------
F F
HKSAR
G v G
LEUNG Pak-lung
H H
-----------------------------------
I I
Before: Deputy District Judge Charles J. Chan
J J
th
Date: 26 October 2018 at 11.51 am
K K
Present: Miss Betty Fu, Senior Public Prosecutor, for HKSAR
L
Mr. To Kon Hung, Terence of Messrs. To, Lam & Co. L
assigned by D.L.A. for the Defendant
M M
Offence: [1] Trafficking in dangerous drugs (販運危險藥物)
N [2] Possession of an offensive weapon in a public place (在公 N
眾地方管有攻擊性武器)
O O
[3] Having custody or control of a counterfeit currency note
P P
(保管或控制偽製流通紙幣)
Q [4] Possession of an identity card relating to another person Q
(管有他人的身分證)
R R
S ---------------------------- S
Reasons for Sentence
T T
----------------------------
U U
V V
- 2 -
A A
B 1. The Defendant has pleaded guilty to a total of four charges, B
namely, 1) Trafficking in dangerous drugs, 2) Possession of Offensive
C C
Weapon, 3) Having custody or control of a counterfeit currency note and
D 4) Possession of an identity card relating to another person. D
E E
2. The prosecution case is straightforward. The Defendant was
F spotted suspicious by two police constables when he appeared in the F
vicinity of Fuk Wah Street in Sham Shui Po at around 10:40am on 12
G G
January 2018. A search was done and it was discovered that the Defendant
H was holding a plastic bag containing 2.81g of dangerous drug which is H
commonly known as “ICE”. In his shoulder bag, 1 plastic bag containing
I I
0.22g ICE and 4 foil packs containing 0.26g nimetazepam in the form of
J 26 tablets were found. There was also a number of re-sealable plastic bags J
inside a wallet kept in his bag. The Defendant was arrested and cautioned
K K
under which he replied that an “Ah-Tung” paid him $500 for him to take
L L
these items to there. This forms Charge 1.
M M
3. A further search had discovered a black 32cm knife which the
N N
Defendant said again it was given to him by Ah-Tung for the purpose of
O collecting debts. The Defendant was arrested and cautioned again. This O
forms Charge 2.
P P
Q 4. The Defendant was then taken back to the Sham Shui Po Q
Police Station in which he was arrested for the 3rd and 4th Charges because
R R
of the finding of his possession of a counterfeit $500 banknote and a Hong
S Kong ID Card belonging to a CHAN Kwok To. The Defendant claimed S
that they were given to him by Ah Tung as well. The $500 banknote, he
T T
said, was the reward for delivering the drugs and plastic bag for Ah Tung
U U
V V
- 3 -
A A
B in Charge 1. The Defendant also said that his own ID Card was taken away B
by Ah Tung because the Defendant owed him money. In return, he was
C C
given the ID Card of CHAN.
D D
Mitigation
E E
5. D is now 37 living with his parents and younger brother. He
F was working as a delivery worker at the airport earning around $30,000 per F
month. However, it is sad to know that the Defendant is a drug addict with
G G
a history of abuse of dangerous drugs for the past 10 years. Before the
H present remand, he used to spend $10,000 per month on drugs. H
I I
6. According to the criminal record, the Defendant has 3
J previous convictions for possession of dangerous drugs. He was sent to J
the DATC in 2016. He also has a conviction similar to Charge 4 which
K K
however took place in many years ago.
L L
M
Consideration M
7. Mr. To has helpfully submitted to this Court a number of on-
N N
the-point case authorities.
O O
P
8. Regarding Charge 1, Mr. To submits that a valuable guidance P
can be found in the case of HKSAR v Wong Kin Kau [2010] 4 HKC 443.
Q Q
The Court of Appeal in that case referred to the case of HKSAR v KO Ka-
R
hing [2009] 4 HKLRD 856 regarding the “Individual Approach” and the R
“Combined Approach”. Mr To suggests this Court to adopt the “Combined
S S
Approach” in the present case and he also places much emphasis on the
T remark of the Court of Appeal in Ko Ka-hing that “no such adjustment is T
U U
V V
- 4 -
A A
B required if the less serious drug is present in insignificant quantity” (see B
p.445).
C C
D 9. In the present case, the total quantity of ICE was 3.03g. It D
falls within the lowest band of the sentencing guidelines set down in
E E
HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, which is 3 – 7 years for this
F narcotic of up to 10g. I shall adopt 4 years as the starting point. For the F
0.26g of nimetazepam, I agree that the quantity is insignificant and the
G G
above remark in Ko Ka-hing is on the point. I shall not adjust the sentence
H for Charge 1 in the formula in applying the “Combined Approach”. That H
I
said, the first Charge remains a very serious offence. I
J J
10. For Charge 2, I have considered the case of HKSAR v CHAN
K Kam Che CACC357/2016 in which Macrae JA (as he then was) endorsed K
the approach in HKSAR v IP Chi Wang HCMA377/2003 where the
L L
applicant was given a 9 months’ imprisonment as the starting point for the
M offence of possession of offensive weapon. The facts of the case before M
Macrae JA are similar to the present case. Suffice it to say, I find that the
N N
knife is per se an offensive weapon and when it was for the purpose of
O debts collection, I shall take a serious view on Charge 2. Section 33(1) of O
the Public Order Ordinance, Cap.245, specifies a term of imprisonment of
P P
not more than 3 years and this offence is an Excepted Offence under the
Q Criminal Procedure Ordinance, Cap.221. In all the circumstances of the Q
present case, I shall adopt a 9 months’ imprisonment as the starting point.
R R
S 11. For Charge 3, again Mr To has helpfully referred me to a case S
of 香港特別行政區 訴 馮仕柏 HCMA177/2015. That case also involves
T T
a section 100(2) offence which carries only 3 years’ imprisonment as the
U U
V V
- 5 -
A A
B maximum penalty which is much lesser than that for a section 100(1) B
offence. The Appellate Court considered that a starting point of 18 months’
C C
imprisonment was excessive for 9 counterfeit $500 banknotes. Mr To
D submits, and I agree, that the present case only involves 1 counterfeit $500 D
banknote and the Defendant should be treated more leniently. I shall adopt
E E
a 9-month starting point for Charge 3.
F F
12. Regarding Charge 4, the authority of HKSAR v Li Chang Li
G G
[2005] 1 HKLRD 864 provides a general guideline of 18-month starting
H point for offences involving forged or other’s but genuine ID card. Mr To H
I
suggests that the Applicant in HKSAR v FAN King Lam CACC220/2010 I
who possessed two genuine ID card had received a starting point of 18
J J
months, the Defendant in this case had possessed only one and therefore
K
the Defendant could be dealt with more leniently. Whilst I believe that the K
18-month starting point is not a straightjacket, the Defendant should
L L
understand that this offence is serious based on what he had been imposed
M in the past for a similar offence. I do not hold that previous conviction M
against the Defendant because after all, it took place many years ago.
N N
However, in light of all the circumstances, I do not see there exists anything
O which justifies a departure. Possession of one identity card belonging to O
another person is a serious offence. I shall adopt the 18 months’
P P
imprisonment as the starting point for the present case.
Q Q
13. The Defendant has entered a plea of guilty for all the charges.
R R
I shall reduce each of the sentences by 1/3. I do not see any further
S reduction justified. S
T T
14. For Charge 1, the sentence is 32 months’ imprisonment.
U U
V V
- 6 -
A A
B B
15. For Charge 2, the sentence is 6 months’ imprisonment.
C C
D 16. For Charge 3, the sentence is 6 months’ imprisonment. D
E E
17. For Charge 4, the sentence is 12 months’ imprisonment.
F F
G 18. These offences are distinct and separate in nature. However, G
I shall take into consideration the totality principle and a total consecutive
H H
sentence would be excessive in all the circumstances of the present case.
I I
19. Having carefully considered, I order 2 months in Charge 2 and
J J
3, and 3 months in Charge 4 to be served consecutive to that of Charge 1
K making it a total of 39 months’ imprisonment (i.e. 32+2+2+3). K
L L
M M
N N
O O
(Charles J. Chan)
P
Deputy District Judge P
Q Q
R R
S S
T T
U U
V V
A A
B DCCC 318/2018 B
[2018] HKDC 1335
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO. 318 OF 2018 E
-----------------------------------
F F
HKSAR
G v G
LEUNG Pak-lung
H H
-----------------------------------
I I
Before: Deputy District Judge Charles J. Chan
J J
th
Date: 26 October 2018 at 11.51 am
K K
Present: Miss Betty Fu, Senior Public Prosecutor, for HKSAR
L
Mr. To Kon Hung, Terence of Messrs. To, Lam & Co. L
assigned by D.L.A. for the Defendant
M M
Offence: [1] Trafficking in dangerous drugs (販運危險藥物)
N [2] Possession of an offensive weapon in a public place (在公 N
眾地方管有攻擊性武器)
O O
[3] Having custody or control of a counterfeit currency note
P P
(保管或控制偽製流通紙幣)
Q [4] Possession of an identity card relating to another person Q
(管有他人的身分證)
R R
S ---------------------------- S
Reasons for Sentence
T T
----------------------------
U U
V V
- 2 -
A A
B 1. The Defendant has pleaded guilty to a total of four charges, B
namely, 1) Trafficking in dangerous drugs, 2) Possession of Offensive
C C
Weapon, 3) Having custody or control of a counterfeit currency note and
D 4) Possession of an identity card relating to another person. D
E E
2. The prosecution case is straightforward. The Defendant was
F spotted suspicious by two police constables when he appeared in the F
vicinity of Fuk Wah Street in Sham Shui Po at around 10:40am on 12
G G
January 2018. A search was done and it was discovered that the Defendant
H was holding a plastic bag containing 2.81g of dangerous drug which is H
commonly known as “ICE”. In his shoulder bag, 1 plastic bag containing
I I
0.22g ICE and 4 foil packs containing 0.26g nimetazepam in the form of
J 26 tablets were found. There was also a number of re-sealable plastic bags J
inside a wallet kept in his bag. The Defendant was arrested and cautioned
K K
under which he replied that an “Ah-Tung” paid him $500 for him to take
L L
these items to there. This forms Charge 1.
M M
3. A further search had discovered a black 32cm knife which the
N N
Defendant said again it was given to him by Ah-Tung for the purpose of
O collecting debts. The Defendant was arrested and cautioned again. This O
forms Charge 2.
P P
Q 4. The Defendant was then taken back to the Sham Shui Po Q
Police Station in which he was arrested for the 3rd and 4th Charges because
R R
of the finding of his possession of a counterfeit $500 banknote and a Hong
S Kong ID Card belonging to a CHAN Kwok To. The Defendant claimed S
that they were given to him by Ah Tung as well. The $500 banknote, he
T T
said, was the reward for delivering the drugs and plastic bag for Ah Tung
U U
V V
- 3 -
A A
B in Charge 1. The Defendant also said that his own ID Card was taken away B
by Ah Tung because the Defendant owed him money. In return, he was
C C
given the ID Card of CHAN.
D D
Mitigation
E E
5. D is now 37 living with his parents and younger brother. He
F was working as a delivery worker at the airport earning around $30,000 per F
month. However, it is sad to know that the Defendant is a drug addict with
G G
a history of abuse of dangerous drugs for the past 10 years. Before the
H present remand, he used to spend $10,000 per month on drugs. H
I I
6. According to the criminal record, the Defendant has 3
J previous convictions for possession of dangerous drugs. He was sent to J
the DATC in 2016. He also has a conviction similar to Charge 4 which
K K
however took place in many years ago.
L L
M
Consideration M
7. Mr. To has helpfully submitted to this Court a number of on-
N N
the-point case authorities.
O O
P
8. Regarding Charge 1, Mr. To submits that a valuable guidance P
can be found in the case of HKSAR v Wong Kin Kau [2010] 4 HKC 443.
Q Q
The Court of Appeal in that case referred to the case of HKSAR v KO Ka-
R
hing [2009] 4 HKLRD 856 regarding the “Individual Approach” and the R
“Combined Approach”. Mr To suggests this Court to adopt the “Combined
S S
Approach” in the present case and he also places much emphasis on the
T remark of the Court of Appeal in Ko Ka-hing that “no such adjustment is T
U U
V V
- 4 -
A A
B required if the less serious drug is present in insignificant quantity” (see B
p.445).
C C
D 9. In the present case, the total quantity of ICE was 3.03g. It D
falls within the lowest band of the sentencing guidelines set down in
E E
HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, which is 3 – 7 years for this
F narcotic of up to 10g. I shall adopt 4 years as the starting point. For the F
0.26g of nimetazepam, I agree that the quantity is insignificant and the
G G
above remark in Ko Ka-hing is on the point. I shall not adjust the sentence
H for Charge 1 in the formula in applying the “Combined Approach”. That H
I
said, the first Charge remains a very serious offence. I
J J
10. For Charge 2, I have considered the case of HKSAR v CHAN
K Kam Che CACC357/2016 in which Macrae JA (as he then was) endorsed K
the approach in HKSAR v IP Chi Wang HCMA377/2003 where the
L L
applicant was given a 9 months’ imprisonment as the starting point for the
M offence of possession of offensive weapon. The facts of the case before M
Macrae JA are similar to the present case. Suffice it to say, I find that the
N N
knife is per se an offensive weapon and when it was for the purpose of
O debts collection, I shall take a serious view on Charge 2. Section 33(1) of O
the Public Order Ordinance, Cap.245, specifies a term of imprisonment of
P P
not more than 3 years and this offence is an Excepted Offence under the
Q Criminal Procedure Ordinance, Cap.221. In all the circumstances of the Q
present case, I shall adopt a 9 months’ imprisonment as the starting point.
R R
S 11. For Charge 3, again Mr To has helpfully referred me to a case S
of 香港特別行政區 訴 馮仕柏 HCMA177/2015. That case also involves
T T
a section 100(2) offence which carries only 3 years’ imprisonment as the
U U
V V
- 5 -
A A
B maximum penalty which is much lesser than that for a section 100(1) B
offence. The Appellate Court considered that a starting point of 18 months’
C C
imprisonment was excessive for 9 counterfeit $500 banknotes. Mr To
D submits, and I agree, that the present case only involves 1 counterfeit $500 D
banknote and the Defendant should be treated more leniently. I shall adopt
E E
a 9-month starting point for Charge 3.
F F
12. Regarding Charge 4, the authority of HKSAR v Li Chang Li
G G
[2005] 1 HKLRD 864 provides a general guideline of 18-month starting
H point for offences involving forged or other’s but genuine ID card. Mr To H
I
suggests that the Applicant in HKSAR v FAN King Lam CACC220/2010 I
who possessed two genuine ID card had received a starting point of 18
J J
months, the Defendant in this case had possessed only one and therefore
K
the Defendant could be dealt with more leniently. Whilst I believe that the K
18-month starting point is not a straightjacket, the Defendant should
L L
understand that this offence is serious based on what he had been imposed
M in the past for a similar offence. I do not hold that previous conviction M
against the Defendant because after all, it took place many years ago.
N N
However, in light of all the circumstances, I do not see there exists anything
O which justifies a departure. Possession of one identity card belonging to O
another person is a serious offence. I shall adopt the 18 months’
P P
imprisonment as the starting point for the present case.
Q Q
13. The Defendant has entered a plea of guilty for all the charges.
R R
I shall reduce each of the sentences by 1/3. I do not see any further
S reduction justified. S
T T
14. For Charge 1, the sentence is 32 months’ imprisonment.
U U
V V
- 6 -
A A
B B
15. For Charge 2, the sentence is 6 months’ imprisonment.
C C
D 16. For Charge 3, the sentence is 6 months’ imprisonment. D
E E
17. For Charge 4, the sentence is 12 months’ imprisonment.
F F
G 18. These offences are distinct and separate in nature. However, G
I shall take into consideration the totality principle and a total consecutive
H H
sentence would be excessive in all the circumstances of the present case.
I I
19. Having carefully considered, I order 2 months in Charge 2 and
J J
3, and 3 months in Charge 4 to be served consecutive to that of Charge 1
K making it a total of 39 months’ imprisonment (i.e. 32+2+2+3). K
L L
M M
N N
O O
(Charles J. Chan)
P
Deputy District Judge P
Q Q
R R
S S
T T
U U
V V