HKSAR v. FUNG WAI LEUNG

DCCC 571 /2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 571 OF 2012

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BETWEEN

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Reasons for Sentence

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Introduction

1.  The defendant is convicted on his own plea of one charge of trafficking in a dangerous drug, namely 81.85 grammes of a powder containing 70.96 grammes of ketamine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134.

Facts

2.  At about 9:26 pm on 10 May 2012, PC 34970 (“PW1”) intercepted the defendant in the vicinity of Shantung Street and Portland Street. Upon search on the defendant at the rear lane of No.191 Portland Street, Mongkok, six transparent resealable plastic bags of powder (the “Bags”) were found in the left front pocket of the defendant’s trousers.

3.  PW1 arrested and cautioned the defendant for trafficking in a dangerous drug. Under caution, the defendant said that he bought the ketamine and would sell them to earn HK$1,000 to HK$2,000 for a living.

4.  In a subsequent video-recorded interview, the defendant said:

(i) He knew the Bags contained ketamine which was a dangerous drug;

(ii) He bought the ketamine at HK$4,400 on the evening of 10 May 2012 and he got it from a rubbish bin inside a toilet at Langham Place;

(iii) He was unemployed and received HK$2,500 per month from social welfare;

(iv) He intended to sell the dangerous drug to his friends at about HK$100 per gramme, but he only intended to sell three out of the six Bags; and

(v) He used HK$2,500 from social welfare and borrowed the shortfall from friends to buy the drug.

5.  The powder contained in the Bags was subsequently found to be 81.85 grammes of a powder containing 70.96 grammes of ketamine.

6.  The estimated street value of the subject ketamine was HK$9,500.

7.  At the time of arrest, the defendant had in his possession three mobile phones, four SIM cards and HK$37.5 cash.

The defendant’s previous conviction record and antecedents

8.  The defendant has 7 previous convictions, including 3 previous convictions of possession of dangerous drugs, 1 previous conviction of possession of equipment fit and intended for smoking dangerous drugs and 1 previous conviction of possession of Part I poison. The defendant does not have any previous conviction of drug trafficking.

9.  The defendant was born on 3 August 1978 and is now 34. He has received education up to Form 5 level. He was last discharged from Hei Ling Chau Drug Addiction Treatment Centre on 19 March 2012. He was unemployed.

Mitigation

10.  Ms Lam submitted that the defendant was unemployed since April this year, and that the defendant was remorseful. Ms Lam informed this court that despite what the defendant had said in the video-recorded interview, only part of the ketamine was for the defendant’s self-consumption and the defendant could not quantify the amount of ketamine intended for his self-consumption.

Sentence

11.  In Secretary for Justice v Hii Siew Cheng & Another [2009] 1 HKLRD 1, the Court of Appeal laid down the tariff for trafficking in ketamine. For trafficking in a quantity of 50 to 300 grammes, the sentence should be an imprisonment of between 6 to 9 years. A starting point of 6 years and 3 months’ imprisonment would have been adopted for trafficking in 70.96 grammes of ketamine. 

12.  The defendant alleged in the video-recorded interview that only half of the ketamine seized was intended for trafficking, thus making the remaining half for the defendant’s own consumption:

(i) According to Hii Siew Cheng, trafficking in a quantity of 10 to 50 grammes of ketamine would attract a sentence of 4 to 6 years’ imprisonment. I would have adopted a starting point of 5 years’ imprisonment for trafficking in 35.48 grammes of ketamine (being half of 70.96 grammes of ketamine);

(ii) As for the other 35.48 grammes of ketamine said to be intended for the defendant’s own consumption, relying on HKSAR v Wan Sheung Sum [2000] 1 HKLRD 405 and HKSAR v Yuen Yat Hung (阮鎰鴻) CACC 59/2009, I would have adopted a starting point of 18 months’ imprisonment. Since substantial quantity of ketamine (35.48 grammes) was involved and the defendant was unemployed and relied on HK$2,500 per month from social welfare, I would find that there was a significant actual risk of dissemination of the drug to fund the defendant’s drug habit: HKSAR v Wong Suet Hau & Another [2002] 1 HKLRD 69 and HKSAR v Minney [2011] 3 HKLRD 556. The sentence would have been enhanced by 50% to take account of the actual risk of dissemination so that the resulting sentence for possession of 35.48 grammes of ketamine would have been 27 months’ imprisonment;

(iii) A numerical addition of the two terms, i.e. 5 years’ imprisonment for trafficking of 35.48 grammes of ketamine and 27 months’ imprisonment for possession of 35.48 grammes of ketamine, would have resulted in a total of 7 years and 3 months’ imprisonment; and

(iv) The 7 years and 3 months’ imprisonment should then be downwardly adjusted to take into account the totality.

Since Ms Lam confirmed that the defendant did not wish to pursue his allegation in the video-recorded interview that only half of the ketamine seized was intended for trafficking, I would dispense with the aforesaid calculation.

13.  As I said earlier on, a starting point of 6 years and 3 months’ imprisonment would have been adopted for trafficking in 70.96 grammes of ketamine.

14.  There is no dispute that part of the ketamine was for the defendant’s self-consumption. Having considered Wong Suet Hau (in which the Court of Appeal said that the court needs to bear in mind that “the quantity accepted as having been intended for self-consumption carries a sentence in any event and that this by itself be aggravated for the latent risk factor so that in most true mixed cases the difference in sentence, if any, will be slight), Minney and HKSAR v Cheung Ching Fai CACC 443/2005 (in which the Court of Appeal said that any reduction to be afforded to the defendant might be offset by the element of sentence that was required to be imposed to reflect the dangerous drugs of which the defendant was possessed only together with an element to reflect the latent risk factor), I would adopt a starting point of 5 years and 9 months’ imprisonment.

15.  One-third discount is given to the defendant for his guilty plea, thus reducing his sentence to 46 months’ imprisonment. There being no other valid mitigating factors justifying any further reduction in sentence, the defendant is sentenced to 46 months’ imprisonment.