HKSAR v. FUNG KONG SHING

DCCC 1180/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1180 OF 2010

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Reasons for Sentence

1.  The Defendant has been convicted on his own plea on four counts on the amended indictment – two counts of possession of a dangerous drug, contrary to Section 8(1)(a) and (2) of the Dangerous Drug Ordinance, Cap. 134, the dangerous drugs being 34.29 grammes of a powder containing 20.09 grammes of ketamine for count 1 and 9.97 grammes of a powder containing 7.75 grammes of ketamine for count 3, and two counts of resisting police officers in the execution of their duties, contrary to Section 63 of the Police Force Ordinance, Cap. 232 (counts 2 and 4).

2.  Facts admitted by the Defendant in respect of counts 1 and 2 disclose that at 5.32 p.m. on 23 July 2010, police officers patrolling in the vicinity of Shek Lei Shopping Centre Phase 2, No. 110 Tai Loong Street, Kwai Chung, saw the Defendant acting furtively and intercepted him – he was brought to No. 3 Staircase, 2/F., Shek Lei Shopping Centre Phase 2 for body search. Upon search, a re-sealable plastic bag containing the dangerous drugs the subject matter of count 1 was found from his waist area which was covered by his trousers. He was arrested and cautioned and under caution said he had bought the ‘K’ for HK$2,000 from a man at around 4 p.m. and that it was for his own self-consumption (count 1). When the Defendant was being escorted to board the police vehicle by the police officers, the Defendant refused to co-operate and became emotional. When PC34985 tried to take hold of the Defendant’s hand, the Defendant suddenly hit PC34985’s face once with his hand. PC34985 tried to handcuff the Defendant but the Defendant kept waving his hands and tried to bang his head against the wall. He was eventually subdued and handcuffed (count 2). While Sgt 38283 was trying to subdue the Defendant, he sustained abrasions to his right middle finger and right ring finger. The Defendant was arrested for resisting arrest and said under caution with foul language that he resisted because he was being arrested. On this occasion the dangerous drugs found from the Defendant was examined by the Government Chemist and found to contain 34.29 grammes of a powder containing 20.09 grammes of ketamine. The estimated street value of these drugs was HK$4,046. The Defendant was remanded is custody until he was granted bail by the High Court on 4 August 2010.

3.  At about 12.05 a.m. on 16 August 2010, police officers patrolling at the staircase of 37/F, Shek Kwong House, Shek Lei Estate, Kwai Chung saw 4 males including the Defendant herein gathered at the staircase on 36/F and 37/F. Upon seeing the police officers, the 4 males fled. The police officers gave chase and eventually the Defendant was caught at the landing between 34/F and 35/F. The other males escaped. The Defendant struggled vehemently and grabbed the chest of one officer with his hand, causing redness at his chest and damaging his police uniform (Count 4). Upon being searched, a re-sealable plastic bag containing the dangerous drugs the subject matter of count 3 was found inside the Defendant’s underpants. The Defendant was thus arrested and cautioned for counts 3 and 4. The dangerous drugs was found to be 9.97 grammes of a powder containing 7.75 grammes of ketamine, with an estimated street value of HK$1,186. Counts 3 and 4 were committed shortly after he was granted bail from the High Court in respect of counts 1 and 2.

4.  The Defendant is now aged 20 years. He had 2 previous convictions, one for robbery in 2005 when he was sentenced to the Detention Centre and one for theft in 2007 when he was sentenced to the Training Centre. In view of his age and at the request of Defence Counsel, I adjourned sentence until today, calling for reports – Background, Training Centre and Drug Addiction Treatment Centre Reports. Counsel reserved mitigation.

5.  Those reports are now before me and I have duly considered the contents therein. I have also borne in mind all that has been urged upon me in mitigation by Counsel on his behalf. His background is set out in great detail in the reports before me and I do not intend to rehearse the contents herein. Suffice to say that he is the youngest of three children and he lives with his family. His behaviour in primary school indicated symptoms of ‘attention deficiency hyperactive disorder’ and his misbehaviour included bullying, tantrums, speaking foul language, vandalism, bringing beers to school, dishonesty and truancy. He left school after Primary 6 in 2005. Soon after leaving school, he was convicted of robbery and sentenced to the Detention Centre when he was 14 years old. He continued to mingle with undesirable peers upon discharge from the Detention Centre. Because of his hyperactive nature and short temper, he was unable to keep a job. He became involved with his former triad peers in his neighbourhood, and for an offence of theft was sentenced to the Training Centre in March 2007. Even after his discharge, his behaviour was unsatisfactory and he was recalled to the Training Centre in November 2009. He was released for the second time in February 2010, and introduced to work as an apprentice chef. He quit the job in May 2010. His father arranged for the Defendant to work with his cousin in China at an aquaculture farm. He returned to Hong Kong in July 2010 to report to the Training Centre. Aftercare Officer as scheduled, and immediately mixed with his undesirable peers and committed the present offences soon after. When interviewed by the probation officer for the Background Report, the Defendant admitted his habit of sniffing ketamine under peer influence after his return to Hong Kong. The officer who interviewed him to prepare the DATC Report described the Defendant as unco-operative and evasive in disclosing his drug taking behaviour. He said the Defendant claimed he started sniffing ketamine in 2006 under the influence of his drug-taking peers, and thereafter consumed ketamine almost daily – he had also tried ecstasy, cocaine and ice, and claimed he was provided the drugs free of charge. His last dose of dangerous drugs was in mid-August, 2010, which would be just before his arrest and detention in the present matter. The officer opined that the Defendant did not show any remorse or reflection into his delinquent behaviour. He said the Defendant claimed he had already been in custody for some 7 months, as he has been remanded since his arrest in mid-August 2010, and sought a sentence of imprisonment. I have been told by Defence Counsel today that the Defendant now thinks that the DATC would be an appropriate sentence to help him deal with his drug addiction. The officer also opined that the Defendant displayed no determination to lead a decent life. The officer held the view that the Defendant may stand a chance of success in turning over a new leaf if given due and adequate social intervention, and recommended that a compulsory drug addiction treatment programme coupled with statutory supervision would be appropriate for his rehabilitation and recommended his admission to the DATC. The Defendant has been examined by a medical officer who has opined that the Defendant is a drug dependant and he is considered suitable for admission to the DATC. He has never been to the DATC before – these are his first drug related offences.

6.  For young offenders such as the Defendant, rehabilitation is an important consideration. Clearly his addiction is one of the main causes of his problems, and treatment for this is of paramount importance. That can best be provided through the DATC programme. In my view, that is the most appropriate sentence in the circumstances. In respect of each of the charges of which he has been convicted, the Defendant is sentenced to the Drug Addiction Treatment Centre, the orders to be concurrent, with conviction to be recorded. I note that he has a family that is concerned about him and his welfare, and their support will certainly help him in the months to come as he deals with his addiction problem.