HKSAR v. FUNG FUK YU

DCCC 287/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 287 OF 2016

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REASONS FOR SENTENCE

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1. The defendant, Fung Fuk Yu, appeared before me and pleaded guilty to the following charges: Charge 1, possession of a dangerous drug; Charge 2, possession of apparatus fit and intended for the inhalation of a dangerous drug; Charge 4, criminal damage; Charge 5, causing wasteful employment of the police; and Charge 6, possession of a dangerous drug.

2. Charge 1 and Charge 2 took place on 25 October 2015.  At about 11:27 am on that day, the defendant’s sister found the defendant yelling and out of control at their place of residence.  Hence, she reported the case to the police.

3. Upon police arrival, the defendant was intercepted and controlled outside the premises.  Upon body search, six plastic bags containing a total of 6.42 grammes of a crystalline solid containing 6.14 grammes of methamphetamine hydrochloride, commonly known as “Ice”, were found upon the defendant.  Upon house search, one “Ice”-inhaling device was found in the defendant’s residence. 

4. The defendant was arrested.  Under caution, he admitted that the “Ice” was for his own consumption and he used the “Ice”-inhaling device for inhaling the dangerous drug.  The defendant was then put on police bail.

5. The 4^th to the 6^th charges were committed on 29 December 2015.  On 24 December 2015, staff members of Cheer Lutheran Centre situated at Ground Floor, Ching Chung House, Ching Ho Estate, Sheung Shui left the office and confirmed that the digital number lock and the doorbell at the entrance were functioning properly and intact. However, on 28 December 2015, at 8 am when they returned to work, it was discovered that the surface of the digital number lock and the doorbell were glued and damaged.  The cost of repair was HK$1,000.

6. On 29 December 2015, at 7:48 am, Madam Chan of the police 999 control centre received a report from phone number 53425044 that a suspicious article marked with “bomb, likely to explode” was placed outside the centre.  As a result of the report, between 8:01 am and 9:10 am on 29 December 2015, a total of 25 police officers were deployed to conduct search and investigation at the vicinity.  It was subsequently confirmed to be a false report.

7. On 29 December 2015, at 1:08 pm, the police located the defendant at the pavement near his place of residence.  Upon body search, the following exhibits were found from the defendant: one cigarette box containing one plastic bag containing 8.72 grammes of a crystalline solid containing 8.43 grammes of methamphetamine hydrochloride, commonly known as “Ice”, and two mobile phones.  One of them was 53425044.

8. Under caution, the defendant admitted that:-

(1) Between 24 December 2015 and 28 December 2015, he damaged the door lock of the centre by using glue because he was not satisfied with the performance of a staff member at the centre in the name of Ivy.

(2) He made a false report regarding a bomb because he was not satisfied with the performance of the social worker at the centre.

(3) The “Ice” belonged to him and was intended for his own consumption.

9. The criminal record shows that the defendant has a total of nine previous convictions.  In 2012, he was convicted of trafficking in dangerous drug.

10. Before sentence, I called for a drug addiction treatment centre report and two psychiatrists’ reports.  The intake officer of Lai Chi Kok Reception Centre says at the conclusion of the drug addiction treatment centre report that since the defendant has stayed away from drug since his remand in custody on 31 December 2015, he is no longer a drug dependent.  The defendant is therefore considered not suitable for admission to a drug addiction treatment centre.

11. Both Dr Chow and Dr Chan in their respective psychiatrist’s report opine that the defendant suffers from methamphetamine dependence with history of polysubstance abuse and drug-induced psychosis.  But both Dr Chow and Dr Chan opine that the defendant does not require in-patient psychiatric treatment.  Both doctors recommend that the defendant should continue with outpatient psychiatric treatment.  The defendant is fit to serve any ordinary sentence as the court finds appropriate.

12. The defendant was born in Hong Kong.  He is now 39 years old, and he has one daughter who is only 4 years old. 

13. Miss Tam submitted a letter in mitigation written by the defendant.  The defendant expresses his remorse in the mitigation letter.  Miss Tam in mitigation submits that as stated in the mitigation letter and in the pre-sentencing reports, the defendant is now remorseful and he wants to start afresh.  The defendant wants to take care of his 4-years-old daughter and his parents upon his discharge from prison. Miss Tam asks me to take into account the principle of totality.

14. In sentencing the defendant, I have borne in mind the nature of the offences, the quantity of the dangerous drugs involved, the facts as admitted by the defendant and all the matters urged on the defendant’s behalf by Miss Tam.  As the defendant is no longer a drug dependent and he is not in need of in-patient psychiatric treatment, a term of immediate custodial sentence is the only appropriate option for the offences in question.

15. For Charge 1, in my judgment, a starting point of 12 months’ imprisonment is appropriate.  The defendant is entitled to one-third reduction for his guilty plea.  For Charge 1, I sentence the defendant to 8 months’ imprisonment.

16. For Charge 2, in my judgment, a starting point of 6 months’ imprisonment is appropriate.  Likewise, the defendant is entitled to one-third reduction for his guilty plea.  I sentence the defendant to 4 months’ imprisonment.

17. For Charge 4, bearing in mind the extent of the damage caused by the defendant and the way he damaged the lock of the centre, a starting point of 9 months’ imprisonment is appropriate. The defendant is entitled to one-third reduction for his guilty plea.  I sentence the defendant to 6 months’ imprisonment.

18. Because of the false report made by the defendant, a total of 25 police officers were deployed to conduct search and investigation.  For Charge 5, a starting point of 6 months’ imprisonment is appropriate.  The defendant should be given one-third reduction for his guilty plea.  For Charge 5, I sentence the defendant to 4 months’ imprisonment.

19. For Charge 6, a starting point of 12 months’ imprisonment is appropriate.  Given the guilty plea of the defendant, I sentence the defendant to 8 months’ imprisonment.

20. I have borne in mind the totality principle.  In my judgment, a total term of 12 months’ imprisonment should adequately reflect the overall criminality of the five offences in question. To achieve that end, I order that the sentences for Charges 1 and 2 should run concurrently with each other, and the sentences for Charges 4 to 6 shall run concurrently with each other, but 4 months of the sentences for Charges 1 and 2 shall run consecutively to the sentences for Charges 4 to 6.

21. Miss Poon told me that the defendant is now serving 5 months and 2 weeks’ imprisonment for the case FL 1267 of 2016.  The offences in FL 1267 were committed on 25 December 2015.  In other words, they were committed after the defendant was put on police bail for Charges 1 and 2 in the present case but before he committed Charges 4 to 6. 

22. The offences in FL 1267 were distinct and separate offences, and they were all unrelated to the present case.  Bearing the totality principle in mind, I order that the sentences in the present case shall run consecutively to the sentences that the defendant is now serving in FL 1267.