HKSAR v. FUNG WAI HUNG

 DCCC567/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 567 OF 2010

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Reasons for Sentence

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The Charges

1.  The defendant faced and pleaded guilty to the three following charges: Charge 1, trafficking in a dangerous drug, namely, 2.69 grammes of a mixture containing 2.27grammes of heroin hydrochloride. Such offence is contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134; Charge 2, possession of a dangerous drug, namely, 10 tablets containing 0.06 gramme of nimetazepam. Such offence is contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance; and, Charge 3, managing a divan under section 35(1)(a) and (2) of the Dangerous Drugs Ordinance.

The Facts

2.  The facts of the case can be summarised as follows. PW1, Mr Wu, was the tenant of the flat situated on 3rd floor, Hong Lok Mansion, 76 Argyle Street of Mong Kok in Kowloon. The flat was divided into six rooms and PW1 subleased Room No.3 and Room No.5 to the defendant at a daily rent of $250.

3.  On 8 March 2010, the police conducted an anti-narcotics operation at the flat. About 9 pm, the police found the defendant and a female inside Room 3 and found six other people inside Room 5. The police searched and found in the defendant’s trousers pocket 15 packets containing a total of 2.69 grammes of a mixture containing 2.27 grammes of heroin hydrochloride and a foil packet containing 10 tablets containing a total of 0.06 gramme of nimetazepam.

4.  The defendant was arrested for trafficking in a dangerous drug. Under caution, the defendant admitted that he sold No.4 heroin to others for profit. The heroin found on him was for sale whereas the tablets were for his own consumption.

5.  Inside Room 3, 84 pieces of unused syringes, a roll of aluminium foil, 6 pieces of aluminium foil, 3 lighters, an electronic scale and a notepad were found on a bed. Inside Room 5, 12 pieces of unused syringes, a roll of aluminium foil, 2 pieces of aluminium foil, 2 lighters, 3 plastic drinking straws and a pair of scissors were found on a table.

6.  The defendant was further arrested for keeping a divan where dangerous drugs are sold. Under caution, the defendant admitted that he rented Room 3 and Room 5 at a daily rent of $400. He allowed his customers to consume No.4 heroin in Room 3 and Room 5. The smoking and injecting equipment in Room 3 and Room 5 were prepared by him for his customers to consume dangerous drugs therein and he had received $150 each from the female and six other people in Room 5.

The defendant’s background and mitigation

7.  The defendant is 30 years old and was a transportation worker on a casual basis. He had 7 previous convictions, 3 of which were related to dangerous drugs. The defendant started to take dangerous drugs at the age of 12. Ever since he was first convicted at the age of 14 of possession of dangerous drugs, he continued with this vice habit and got himself involved in the trade of selling drugs. Eventually, he was convicted of trafficking in dangerous drugs in November 2006 at the District Court and was sent to 22 months’ imprisonment. Apparently, the prison sentence he served 4 years ago had no deterrent effect on him.

8.  In March 2010, he committed the same offence of drug trafficking and at the same time he was also caught managing a divan. Regrettably and sadly, selling drugs and provision of place to consume drugs by others have become his profession.

Sentencing guidelines and starting points

9.  Sentencing guidelines for trafficking in heroin after trial had been laid down by the Court of Appeal in R v Lau Tak Ming CACC230/1989. For narcotics contents up to 10 grammes, the sentence range would be 2 to 5 years’ imprisonment. The narcotics content in this case was 2.27 grammes of heroin hydrochloride.

10.  The defendant’s criminal act was a deliberate disobedience of the law. For the protection of the society and the deterrence for further repetition by the defendant, a higher starting point is called for. This court would adopt a starting point of 36 months on Charge 1.

11.  There is no sentencing tariff for Charges 2 and 3. A starting point of 3 months is adopted for Charge 2. Having considered the Court of Appeal case of HKSAR v Lam Lai Chu Patsy CACC56/2003 which serves a useful reference, this court will adopt a starting point of 18 months on Charge 3.

12.  The defendant is entitled to one-third discount for his plea which would reduce the sentence to 24 months, 2 months and 12 months respectively.

Totality principle

13.  The 3rd charge of managing a divan, though arising out of the same set of facts with Charges 1 and 2, was a distinct and separate offence. To reflect the overall criminality of the defendant, a concurrent sentence would be inappropriate. However, this court will ensure that the totality is not excessive. As such, partly consecutive sentences for these closely linked offences would be appropriate.

Sentences

14.  The sentences in Charges 1 and 2 are to run concurrently, whereas 6 months of the sentence in Charge 3 are to run consecutively to Charges 1 and 2 with the remainder to run concurrently. The defendant is to serve a total term of 30 months’ imprisonment.