HKSAR v. FUNG CHUN HUNG

DCCC652/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 652 OF 2009

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Reasons for Sentence

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1.  The 1st defendant has pleaded guilty to two offences of trafficking in dangerous drugs.

2.  On 21 April 2009, at a staircase near Room 1512, 15th Floor, Oi Tai House, Fu Tai Estate, Tuen Mun, he unlawfully trafficked in 8.66 grammes of ketamine. On the same day at the same location he also trafficked in 5.95 grammes of ketamine and a small quantity of nimetazepam.

3.  The very lengthy Summary of Facts discloses that on the evening of 21 April 2009 officers were on police patrol in the Oi Tai House in Fu Tai Estate. At about 7.20 pm, the police party heard noises coming from the staircase of the 15th floor. Through a glass window, the officers observed the defendant and two other defendants at the staircase. The police observed that one of those other defendants was giving some banknotes to this defendant. He was seen to place the banknotes in his wallet, and from that wallet, he was seen to take out a packet of substance and hand it to one of the other defendants. One of those other defendants was seen to pour some of the substance onto a banknote.

4.  It was at that stage that the police came out of ambush and intercepted all three defendants and a search was conducted.

5.  The drugs which the 1st defendant had been seen to hand to the other defendant was found in the trouser pocket of the 3rd defendant. That is the subject of the 1st charge.

6.  A search was made of the defendant and a packet of white substance and two tablets were found inside his wallet, and this is the subject of the 2nd charge.

7.  A total of $2,645 was found inside the 1st defendant’s wallet. There were two quantities. There was one of $900 and one of $1,745.

8.  The defendants were arrested and the drugs were analysed and found to be the drugs the subject of the 1st and 2nd charges.

9.  The defendant has one previous conviction for wounding in 2008, for which he was given Community Service.

10.  I am told in mitigation that the defendant is 18 years of age and was educated only to Form 1 standard. He was born on the mainland and came to live in Hong Kong. He lived with his parents and sisters. Unfortunately, in the year 2000 his father was involved in a road traffic accident and was unable thereafter to do heavy work. His mother suffered from serious depression for which she required hospital treatment. The family had to rely on social assistance until 2005. With the help of some friends, the defendant’s father was able to get some money together and purchase three fishing vessels and run a small business in China. From that, his father made an income of some $20,000 per month.

11.  The defendant used to help his father but he used to come to Hong Kong to work as well. He worked as an apprentice on construction sites in Hong Kong, earning about $12,000 per month if he was able to work continuously. He made regular payments to his mother when he was earning.

12.  I am told that the defendant is the youngest member of the family. His elder sisters used to work in a boutique and they have now recently opened their own business.

13.  The defendant has written a rather lengthy letter to the court explaining how he feels about this offence and how he feels about his family. He says that he now understands how great the love for him is with his parents and with his sisters and, whilst in custody, he has been visited by his family, and particularly by his father, who has told him that no matter what happens to him, he is still their beloved son.

14.  He said that before this incident he always felt an outsider in the family. His mother had suffered from depression since she was young and had to go in and out of hospital. He felt that nobody really took care of him and he thought he was one too many in the family, and it was in that frame of mind that he found friendship amongst people who led him down the wrong path.

15.  He promises to make the most of his time in custody, he intends to study, and when he comes out he intends to lead a useful life of which his parents can be proud.

16.  A further letter from the defendant’s sister has been placed before the court with much the same sentiments expressed.

17.  The charges to which the defendant has pleaded guilty are serious charges. Trafficking in ketamine is rife in Hong Kong and it is particularly people the age of the defendant who are found trafficking in this drug and I know the two persons to whom he supplied the drugs were also 18 years of age.

18.  For trafficking in 8.66 grammes of ketamine, the appropriate sentencing range is from 2 to 4 years; that is between 1 and 10 grammes. The appropriate starting point therefore for trafficking in 8.6 grammes would be about 3½ years.

19.  On the 2nd charge, the amount of ketamine is 5.95 grammes. The appropriate sentence for trafficking in that quantity of drugs would be in the region of 3 years’ imprisonment.

20.  I have taken into account the question of totality.

21.  In respect of the 1st charge, I take the starting point of 3½ years’ imprisonment and I reduce that by one-third to reflect the guilty plea entered by the defendant. So in respect of the 1st charge, the defendant will go to prison for 28 months.

22.  In respect of the 2nd charge, I have taken a starting point of 3 years and reduce that by one-third to reflect the guilty plea. The sentence for that offence will therefore be one of 2 years’ imprisonment.

23.  I have taken into account the question of totality and I order that 4 months of that sentence be ordered to run consecutive to the sentence imposed for the 1st charge. The total sentence will be therefore one of 32 months’ imprisonment.