HKSAR v. FUNG SEK CHUEN

DCCC 568/2023

[2024] HKDC 868

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 568 OF 2023

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REASONS FOR SENTENCE

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1.  Mr Fung pleaded guilty before me to one charge of Trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134. Particulars are that he, on 6 April 2023, near the junction of Nam Cheong Street and Cheung Sha Wan Road, Sham Shui Po, Kowloon, in Hong Kong, unlawfully trafficked in dangerous drugs, namely 14.8 grammes of a solid containing 10.6 grammes of ketamine and 1.52 grammes of a solid containing 1.31 grammes of cocaine.

Facts admitted by Mr Fung

2.  On 6 April 2023, at about 5:50 pm, Mr Fung was walking along Cheung Sha Wan Road (Southbound).  After he turned left into Nam Cheong Street, he noticed PW1, a police constable, patrolling the streets with his colleagues.  Mr Fung and the police party were walking towards each other.  Mr Fung became nervous and put his hand on the shoulder bag (“the Bag”)  he was carrying.  Feeling suspicious, PW1 stopped Mr Fung and searched him.

3.  Upon search, the following items were found from the Bag:-

(a)  One plastic bag containing 19 small re-sealable plastic bags containing 14.8 grammes of a solid containing 10.6 grammes of ketamine; and

(b)  One plastic bag containing 4 small re-sealable plastic bags containing 0.6 gramme of a solid containing 0.51 gramme of cocaine.

4.  Suddenly, Mr Fung patted the right front pocket of his trousers and said, “Ah Sir, please give me a chance.  There is more in my pocket.”  In response, PW1 searched the pocket and found a piece of white tissue paper wrapping 3 other pieces of tissue paper.  Inside the wrapping, PW1 found 6 plastic bags containing a total of 0.92 gramme of a solid containing 0.8 gramme of cocaine.

5.  PW1 arrested Mr Fung for trafficking in dangerous drugs.  Under caution, Mr Fung said that those dangerous drugs were for his self-consumption.

6.  During a subsequent body search conducted in the police station, PW1 found on and seized from Mr Fung:-

(a)  Cash of $10,855.70; and

(b)  Two mobile phones.

7.  Under caution, Mr Fung said the money found on him comprised of $7,000 from his CSSA and the rest from his previous savings.

8.  In the small hours of the next day ie 7 April 2023, a house search was conducted at Mr Fung’s residence with nothing related to drugs found.

9.  The estimated street value of the ketamine found was $6,286.80; while the figure for the cocaine found was $1,169.80.

10.  Mr Fung now admits that from the circumstances of the case, it is to be inferred that on the day and at the place of crime, he possessed the dangerous drugs concerned for the purpose of unlawful trafficking.

Criminal record

11.  Mr Fung has 18 previous convictions 6 of which were related to possession of dangerous drug.

Antecedents

12.  Mr Fung is aged 51 (50 at the time of the offence), educated to secondary school level, unemployed at the time of arrest.  Mr Fung is not married and he was living in public housing in Sham Shui Po.

Mitigation

13.  Ms Nicole Chun of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Fung.  The following is a summary of the mitigation submissions.

14.  Mr Fung was born in the Mainland and came to Hong Kong in 1992.  He received up to Form 3 education in the Mainland.  Mr Fung and his girlfriend have one daughter (6)  and one son (3).

15.  Mr Fung had a stroke in 2019 resulting in his disability.  Thereafter, he has been receiving CSSA and disability allowance at a rate of about $6,500 per month which he spent on rent and the children.  He also borrowed money from friends to supplement his finance.  He committed the present offence for financial reasons.

16.  Mr Fung has previous convictions for possession of dangerous drug but not for trafficking.  The court is invited to consider him as a first time offender of the present type of offence.

17.  Mr Fung cooperated with the police by divulging, on his own initiative, the presence of 6 more packs of cocaine in his trousers’ pocket.  Mr Fung pleaded guilty and asked for leniency.

18.  According to HKSAR v Lau Tak Ming & Ors [1990] 2 HKLR 370 and Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69, the tariff for trafficking in up to 10 grammes of cocaine is in the range of 2 to 5 years of imprisonment.

19.  According to Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1 and HKSAR v Sin Chung Kin & Anor [2013] 1 HKLRD 627, the tariff for trafficking in 1 to 10 grammes of ketamine is in the range of 2 to 4 years of imprisonment; and the tariff for trafficking in 10 to 50 grammes of ketamine is in the range of 4 to 6 years of imprisonment.

20.  In respect of multiple drugs, the Court of Appeal in HKSAR v Islam SM Majharul [2020] 3 HKLRD 146 set out the relevant calculations and steps. Upon considering the amounts and proportions of 10.6 grammes of ketamine and 1.31 grammes of cocaine in the present case, the court is invited to adopt a combined approach by way of conversion test to avoid the absurdity where the less potent drug in this case is making up a vast majority of the drugs involved.  By conversion test, 1.31 grammes of cocaine is equivalent to 2.77 grammes of ketamine.  As a result, the appropriate starting point for 13.77 grammes of ketamine (ie 2.77 + 10.6)  would be 4 years 2 months.

21.  Having taken further instructions, Ms Chun said she is not relying on self-consumption as a mitigating factor.

22.  Upon enquiry by the court, Ms Chun submits that Mr Fung was a storekeeper of drugs; that on the day of arrest, after collecting the drugs at Shek Kip Mei MTR station, Mr Fung went to buy some groceries before heading home; however, before he could reach home, he was stopped by the police.  Ms Chun submits that the arrangement was that Mr Fung was to keep storing the drugs pending further instructions.

Sentence

23.  Trafficking in dangerous drug is a serious offence.  It is made more serious where there are more than one type of serious drug present at the time of the offence.

24.  The total weight of all drugs in this case is 11.91 grammes.

25.  According to the sentencing tariffs, 10.6 grammes of ketamine calls for 48.36 months; 1.31 grammes of cocaine calls for 28.716 months.

26.  The individual approach by adding the two starting points is obviously disproportionately harsh.  I will adopt the combined approach of sentencing.

27.  My own calculations of the three cross-checking tests render the following results:-

(a)  Absurdity test: 11.91 grammes of ketamine – 49.146 months; 11.91 grammes of cocaine – 61.719 months;

(b)  Conversion test: 13.368 grammes of ketamine calls for 50.02 months; 8.077 grammes of cocaine calls for 53.077 months; and

(c)  Ratio test: (10.6/11.91)  x 49.146 + (1.31/11.91)  x 61.719 = 50.529 months.

28.  I have had regard to the authorities of HKSAR v Islam SM Majharul (supra) and HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 when sentencing Mr Fung.

29.  I adopt 50 months as the initial starting point as invited by Ms Chun. Because of the presence of two types of serious drug, I add 3 months to that starting point.

30.  There is not sufficient evidence to suggest Mr Fung was an actual trafficker.  So I will treat him as a mere storekeeper and will not further enhance the starting point.

31.  Mr Fung pleaded guilty in good time earning for himself the full 1/3 discount in sentence.  I can see no other mitigating factors of weight to warrant any further reduction in sentence.

32.  I will round down the sentence after calculation to the nearest full month.

33.  I do not consider the final sentence too harsh having regard to the totality principle.

(Mr Fung, please stand)

34.  The sentence is 35 months’ imprisonment.