HKSAR v. FUNG SIK PUI

DCCC 298/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 298 of 2013

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Reasons for Sentence

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1.  Defendant, you have pleaded guilty to two charges of trafficking in a dangerous drug, contrary to section 4(l)(a) and (3) of the Dangerous Drugs Ordinance. Both charges were committed on 5 January 2013.

2.  In respect of the first charge, you committed that offence at Level 2 of Landmark North at Sheung Shui in the New Territories.  You unlawfully trafficked in 13.2 grammes of a powder containing 9.68 grammes of ketamine.  In respect of the second offence of trafficking, you had unlawfully trafficked in 119.3 grammes of a powder containing 99.19 grammes of ketamine at your home in Lam Tin Estate, Kwun Tong.

3.  On the day in question at about 6.30 pm police officers intercepted you outside the exit of Landmark North in Sheung Shui. Upon a body search they found a plastic bag containing the drugs as stated in Charge 1 in your right front trousers pocket.  Under caution, you admitted that the exhibit contained ketamine and that you were to sell it to others to earn money.

4.  You further admitted that you had more ketamine at your home which you had not yet sold to others.  The police officers therefore took you back to your home at Lam Tin Estate at about 8.45 pm and in your room you indicated to the police officers where the ketamine was stored.  They were stored in a plastic bag at the back of your bedroom door.  You were further arrested and cautioned and you admitted that that ketamine was for you to sell but you had not sold it yet.

5.  The estimated street value of the drugs in Charges 1 and 2 was about $16,000.

6.  Defendant, Mr Damy Lou, your solicitor, has mitigated fully and thoroughly on your behalf before me. 

7.  At the time of commission of the offence you were 17 years of age.  You turned 18 yesterday.  You are a man of clear record.  You live with your parents and younger sister.  Mr Lou has informed me, and as stated in your and your parents letters you are very remorseful for committing this very serious crime.  You foolishly committed this offence in order to earn some money. 

8.  Mr Lou has rightly set out the sentencing guideline case of Secretary for Justice v Hii Siew Cheng.  For trafficking in ketamine of between 50 grammes to 300 grammes the band of imprisonment is between 6 to 9 years’ imprisonment. 

9.  He has also referred me to a case of Secretary for Justice v Lau Shing Kit [2012] 5 HKLRD 297 at paragraph 17 of the judgment whereby the Court of Appeal acknowledged that the bands are not entirely mathematical in the sense that there is room for manoeuvre.  He has urged the court to take a starting point at the lowest end of that spectrum. 

10.  As I am sure you are well advised defendant, trafficking in dangerous drugs is a very serious offence.  Youth, old age or disability is not an exceptional mitigating circumstance, nor is the fact of a clear record. 

11.  It is very unfortunate for you, defendant, a young man with a clear record, to have committed such a very, very serious offence.  The drugs of which you had for the purposes of trafficking was indeed a large amount.  As I am sure you now know, earning quick or fast money is almost always illegal.  It is unfortunate that a young man like you will now have to spend a fairly long time behind bars.

12.  Defendant the court of course is guided by the guidelines as set down by the Court of Appeal.  The spectrum is between 6 to 9 years’ imprisonment for the amounts to which you trafficked in, which was a total of 108.87 grammes.

13.  In the circumstances of this case, defendant, and particularly in the commission of the second offence, there was something exceptional there in that you in fact informed the police that you had more drugs at your home.  This information was volunteered by yourself.  In those circumstances, defendant, I am persuaded that I can start at the lower spectrum of the guideline term given your voluntary provision of assistance and confession.  In those circumstances, considering the totality of the drugs, that is the 108.87 grammes, I am prepared to start at a starting point of 6 years’ imprisonment had I convicted you after trial.  You have pleaded guilty and in those circumstances you are accorded the usual one-third discount and you shall be sentenced to 4 years’ imprisonment.

14.  I must now deal with the individual charges to sentence you for each charge.

15.  On Charge 1, I would have sentenced you to 2 years 6 month’s imprisonment after your plea of guilty, and after your plea of guilty to Charge 2, I would have sentenced you to 4 years’ imprisonment, and those two charges are to run concurrent to each other.