HKSAR v. FUNG KA YUI

DCCC 746/2018

[2019] HKDC 1038

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 746 OF 2018

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one charge of “Trafficking in dangerous drugs”, namely 17.30 grammes of a powder containing 14.90 grammes of ketamine and 1.30 grammes of solid containing 1.08 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

Brief Facts

2.  At about 1:45 pm on 4 June 2018, police conducted an anti-narcotics operation at Mei Foo Sun Chuen, No 117 Broadway, Kowloon (“the Building”).  At about 2:48 pm, the defendant was seen leaving Room A on 14^th Floor of the Building and entering the lift.  The police intercepted the defendant.

3.  Upon conducting a search on the defendant, the police found 3 keys and cash of HK$570 on the defendant. 

4.  The police entered Room A on 14^th Floor of the Building using one of the keys found on the defendant. 

5.  A search was conducted by the police pursuant to a search warrant. Inside the drawer of the living room, two resealable plastic bags were found. Upon examination by the Government Chemist, they were found to contain the following dangerous drugs:-

(i) A resealable transparent plastic bag containing 18 plastic bags containing a total of 17.3 grammes of a powder containing 14.9 grammes of ketamine;

(ii) A resealable transparent plastic bag containing 6 plastic bags containing a total of 1.30 grammes of a powder containing 1.08 grammes of cocaine; and

(iii) cash of HK$6,943.00 (12 x $500 notes; 7 x $100 notes, 3 x $50 notes, 4 x $20 notes and the remainder in coins).

6.  The estimated street value of the ketamine seized is HK$8,528.90 and that of the cocaine was HK$1,657.50, totaling HK$10,186.40.

7.  The defendant was arrested and under caution, he said that all the dangerous drugs were for his own consumption.

8.  In a subsequent video recorded interview, under caution, the defendant admitted, inter alia:-

(i) On the day of arrest, the defendant purchased the dangerous drug from Ah Keung in Lai Chi Kok Park;

(ii) The defendant saw Ah Keung selling dangerous drugs at the park on previous occasions and he approached Ah Keung to sell him HK$10,000 worth of ketamine;

(iii) Ah Keung sold him the ketamine and gave him the cocaine as a gift for the bulk purchase;

(iv) The defendant lived alone in the premises and rented it since 4 March 2018;

(v) The defendant worked as a part-time kitchen worker and had an unstable income; and

(vi) The defendant was addicted to ketamine and cocaine. He had been taking ice and cocaine for 10 years. He consumed 2 packets of ketamine per day.

9.  Whilst the defendant was in custody at Lai Chi Kok Reception Centre, immunoassay test was carried on 6 June 2018 and his urine specimen showed negative results for all targeted substance, save that test for ketamine has not been carried out.

Defendant’s Background and Mitigation

10.  The defendant is 24 years old.  He has two criminal convictions with one similar record of “possession of dangerous drugs”.  He came from a broken family and his divorced parents left him in the care of his paternal relatives.  The defendant worked as a part-time kitchen worker earning HK$700 per day in a restaurant in Wanchai and a worker at wholesale fish market in Shamshuipo earning about HK$7,000 – 8,000 per month. 

11.  The defendant started taking ketamine, cocaine and ice since 12 years old.  He tried to kick off his drug addiction habit by receiving treatment at various institutions but was unsuccessful.  At the time of the offence, he claimed that he would consume 2 packets of ketamine per day.

12.  The defendant claimed that about 22% of the ketamine would be for his self-consumption and the rest would be shared with friends. 

13.  I have considered the defendant’s financial position in determining whether or not to accept his claim that about 22% of the seized drugs were for his own consumption.  According to his admissions made under caution, he had unstable earnings, but he was able to afford a rental of HK$16,800 per month. (As per paragraph 5 of the Amended Summary of Facts).   Nearly HK$7,000 cash was found in his premises, yet he said he just spent another HK$10,000 to purchase ketamine from Ah Long on that same day.  It is clear that his earnings do not commensurate with his spending habit of self-consumption and sharing of the dangerous drugs with friends for social purpose.   Therefore, I found that the defendant was trafficking the seized dangerous drugs for commercial purposes.

Reasons for Sentence

14.  In this case, there are two kinds of drugs, ketamine and cocaine. Having considered the defendant’s counsel’s submissions, I agree that the appropriate course is to adopt the “combined approach”.  Albeit the larger quantity of dangerous drug ketamine (14.90 grammes) is less potent than the smaller quantity of dangerous drug, ie 1.08 gramme of cocaine, I am of the view that the more sensible approach, and to avoid absurdity to arise is to adopt ketamine as the basis for the starting point.

15.  The sentencing tarrif for 10-50 grammes of ketamine is 4 – 6 years’ imprisonment.  I consider a starting point of 51 months’ imprisonment for the 14.90 grammes of ketamine to be appropriate. 

16.  I would enhance the starting point (for both the 14.09 grammes ketamine and 1.08 grammes cocaine) to one of 54 months’ imprisonment to reflect the totality principle.

17.  I would give the usual 1/3 discount to the sentence of 54 months. The defendant is sentenced to 3 years’ imprisonment.