HKSAR v. FUNG HO NAM

DCCC 1116/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1116 OF 2015

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REASONS FOR SENTENCE

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1. The defendant pleaded guilty to one charge of “Trafficking in dangerous drugs”, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. The dangerous drugs involved are cocaine and ketamine.

Facts

2. At around 9:35 pm on 12 October 2015, the defendant was intercepted by the police outside Room 1908, Tsz Fai House, Tin Tsz Estate, Tin Shui Wai (“the Premises”).  One plastic bag containing 8 packets of cocaine was found in the defendant’s left jacket pocket.  The defendant was also in possession of one Samsung mobile phone, one iphone and cash HK$2,350.  Under caution, the defendant admitted selling cocaine for profit. 

3. House search was conducted at the Premises.  Upon search, 2 resealable plastic bags containing 107 packets of cocaine (these 107 packets together with the 8 packets found earlier contained a total of 21.7 grammes of a solid containing 18.8 grammes of cocaine), one plastic bag containing 23 grammes of a solid containing 19 grammes of cocaine, one plastic bag containing 13.3 grammes of a powder containing 8.62 grammes of ketamine, one plastic bag containing 818 empty transparent resealable plastic bags, one steel needle and two electronic scales containing traces of a powder containing cocaine were found in the defendant’s bedroom.

4. Under caution, the defendant admitted the ketamine was left over from previous transaction, that the steel needle was used to dissect the cocaine for sale and the scales and plastic bags were used to distribute the cocaine.  He further admitted that all the drugs were for trafficking.  He received the cocaine from a driver about 2 hours before arrest.  He would use the steel needle to dissect the solid cocaine into small pieces of about 0.2 to 0.23 grammes each.  Then he would put each piece in one resealable plastic bag for sale at HK$300 or HK$350.  He would receive HK$50 or HK$100 from sale of each piece.  Each packet of ketamine would be sold at HK$100 and he would receive HK$10 to HK$20 from sale of each packet.  He used the Samsung mobile phone for drug trafficking activities.  The cash of HK$2,350 was proceeds from sale of drugs.

Mitigation

5. The defendant is aged 19, single and was living with his elder sister before the arrest.  Prior to the arrest, he was studying in F.6.  He came from a broken family.  His mother left him about 10 years ago.  He lived with his father, step mother and elder sister. However, his father suddenly left him and his sister in May 2015.  As a result, he trafficked in dangerous drugs in order to earn money to support himself.  He has one previous conviction for theft in 2010 and was put on probation for 12 months.   

6. In mitigation, Mr Mok on behalf of the defendant pointed out that given two types of dangerous drugs were involved, he urged the court to adopt the combined approach in arriving at the appropriate starting point for sentence.  He further submitted that given the defendant’s youth, his plea of guilty, this is his first conviction relating to dangerous drugs and the unusual reason for the commission of the offence, he urged the court to impose a lenient sentence on the defendant.  Finally, several mitigating letters from the teachers and principal of the defendant’s school and social workers were submitted for this court’s consideration.

Sentence

7. I note the defendant is a young person, only aged 19.  In dealing with young offender, it is generally considered more important to rehabilitate a young offender than to severely punish him as a deterrent.  However, in cases involving drug trafficking offences, it has been repeatedly stated by the Court of Appeal that public interest requires that deterrence of other potential offenders must take precedence over the rehabilitation of a particular offender.  It is only in very rare cases that detention in training centre or detention centre may be imposed.  In general, immediate custodial sentence is the only appropriate sentence in such circumstances (see Secretary for Justice v Chau Tsz Tim, CAAR 4 &5/2014).

8. While the defendant is young, he cannot be regarded as person of extreme youth (see HKSAR v Pau King Kong [2013] 3 HKLRD 676).  I do not see other exceptional circumstances in this case which may justify the imposition of detention or training centre order.  I consider immediate custodial sentence is the only appropriate sentence in this case.

9. The Court of Appeal has laid down clear sentencing guidelines for trafficking in cocaine and ketamine (see R v Lau Tak Ming and others [1990] 2 HKLR 370 for cocaine and Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1 for ketamine).  For trafficking in 10-50 grammes of cocaine, the sentence ranges from 5 to 8 years’ imprisonment.  Trafficking in 1 to 10 grammes of ketamine will attract a starting point of 2 to 4 years’ imprisonment.  The amount of cocaine trafficked is 37.8 grammes.  The appropriate starting point is 7 years’ imprisonment.  For the 8.62 grammes of ketamine trafficked by the defendant, the appropriate starting point is 42 months’ imprisonment.

10. In cases involving trafficking in more than one type of drugs, the Court of Appeal has set out two different approaches, namely the combined approach and the individual approach (see HKSAR v Yip Wai Yin & Anor [2004] 3 HKC 367).  If the individual approach is adopted in this case, the overall starting point would be over 10 years, which is much higher than the starting point for the whole quantity of the two drugs if the batch merely contained cocaine.  Therefore, I will adopt the combined approach in determining the appropriate starting point.

11. In this case, cocaine and ketamine are involved.  Given cocaine is the more serious drug in terms of potency and quantity, I will refer to the sentencing tariff for cocaine.  As I mentioned earlier, for trafficking in 37.8 grammes of cocaine, the appropriate starting point is 7 years’ imprisonment.  As the defendant trafficked in more than one type of drug, this is considered as an aggravating factor as he was able to cater for a wider market.  To reflect that aggravating factor, I enhance the starting point by a further 6 months’ imprisonment. 

12. Since the defendant pleaded guilty to the charge, he is entitled to the usual 1/3 discount on his guilty plea. Therefore, the sentence will be reduced to 60 months’ imprisonment. 

13. The mitigating letters reveal that the defendant is considered to be a kind and helpful person.  He also participated in volunteer work.  It also confirmed the reason for his committing the offence.  While I have sympathy for the defendant for the unfortunate and difficult situation faced by him as a result of his father suddenly leaving him prior to the offence, that cannot provide any sort of excuse for resorting to crime.  It is not a valid ground for further reduction of sentence.  On the other hand, since the defendant had participated in volunteer work, I am prepared to give him a reduction of 3 months for this positive character.  The sentence is therefore reduced to 57 months’ imprisonment.

14. I hereby sentence the defendant to 57  months’ imprisonment.