HKSAR v. FUNG WAI HUNG

HCCC 531/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 531 OF 2013

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT: The defendant had pleaded guilty to one count of trafficking in a dangerous drug, namely 187.45 grammes of a powder containing 150.12 grammes of ketamine, 2,360 tablets containing 27.79 grammes of diazepam, 60.51 grammes of a solid containing 42.63 grammes of cocaine, 29.83 grammes of a mixture containing 21.03 grammes of heroin hydrochloride, and 33.16 grammes of a crystalline solid containing 32.63 grammes of methamphetamine hydrochloride.

He was committed to this court for sentencing.

On the day of the offence, 15 May 2013, police raided an unlicensed guesthouse in Mong Kok. The defendant was a tenant in those premises occupying Room 2 and Room 3. The door to Room 3 was locked, and when the police broke down the door forcibly, inside they found the defendant sitting on a bed.

Inside his trouser pocket were found some drugs, 2.69 grammes of heroin hydrochloride, and another bag containing 1.51 grammes of a crystalline solid containing 1.49 grammes of methamphetamine hydrochloride, and four bags containing a total of 0.79 grammes of a solid containing 0.567 grammes of cocaine.

The defendant, at that time, under caution said that those drugs were for his own consumption.

Inside Room 3 was also found various types of drugs kept inside a loudspeaker and in a metal box underneath the pillow on the bed. Two bottles suspected to be used in connection with inhaling of methamphetamine hydrochloride were also found. And an electronic scale and transparent resealable plastic bags and a notebook containing a suspected written record of sale of dangerous drugs were also found.

In the other room, Room 2, were found two electronic scales and more empty transparent resealable plastic bags. There were also found on the defendant three mobile telephones and cash of $3,660.

When the defendant was interviewed under caution, he said that he was paid to sell dangerous drugs to customers who came to the premises to buy them. He admitted that he had rented the two rooms since mid April, and he was paid $1,000 a day for selling the dangerous drugs at the premises. He was the only person selling drugs there, and when the drugs in the premises was sold out, he would ask someone to bring more drugs up to the premises for sale.

Then an unknown person would come to the premises at midnight every day to collect the daily revenue which amounted to around 3,000 to 4,000 dollars, Though it was clear from the defendant’s own confession that he was running a retail shop for the sale of dangerous drugs.

The estimated street value of all the dangerous drugs seized was in the region of HK$131,083.

The defendant is aged 33, and has 17 previous convictions, eight of which are drug-related, including four which were for trafficking in dangerous drugs.

His last offence was in May 2012 when he was sentenced to four months’ imprisonment for possession of dangerous drugs.

In mitigation, Mr So, on his behalf, said that he had become unemployed and, therefore, because he was a drug addict he could not find any job and so he turned to selling dangerous drugs.

Now, as far as sentencing is concerned, guidelines have been set down by the Court of Appeal for trafficking in the individual drugs for ketamine, cocaine, heroin, hydrochloride and methamphetamine hydrochloride.

Cocaine and heroin hydrochloride, or heroin, as it is commonly known, follows the guidelines laid down in Lau Tak Ming. So, if one added the cocaine and heroin together it will, in this case, give us about 63.66 grammes, which would merit in the guidelines to about eight to eight-and-a-half years’ imprisonment.

The “Ice” would follow the guidelines laid down in Ching Kwok Hung which says that for 10 to 70 grammes of “Ice”, that would merit a sentence of 7 to 10 years’ imprisonment.

So following the cases of HKSAR v Wong King Kau [2010] 4 HKC 443, and HKSAR v Yau Ka Ming CACC 144/2013 (unreported), taking the combined approach the “Ice” in this case would merit a seven year imprisonment starting point, and it converted to the Lau Tak Ming guidelines would be about 36 grammes of heroin.

So, adding 36 grammes to the cocaine and heroin total of 63.66, we get a number which is 96.66(?) grammes which would merit a starting point, according to the Lau Tak Ming guidelines of nine-and-a-half years.

As for the ketamine in this case, it would follow the guidelines laid down in Hii Siew Cheng which says that for trafficking in 50 to 300 grammes of ketamine, that would merit a sentence starting point of six to nine years’ imprisonment.

In this case, we have 150.12 grammes of ketamine which would fall into a starting point of seven years. Converting that to the Lau Tak Ming guideline, that would give us 36 grammes. Adding the 36 grammes to the “Ice” cocaine and heroin total of 96.66(?) grammes would give us 132.66(?) grammes which would give us a starting point sentence, according to the Lau Tak Ming guidelines of 10 to 10-and-a-half years.

As far as the diazepam is concerned, I agree with the defence submission made by Mr Boyton in his written submissions, which is adopted by Mr So, that it is minimal, as compared to the other quantity and, therefore, I agree that it should be subsumed into the other drugs.

Therefore, taking into account all the matters in this case, I would adopt a starting point of 10-and-a-half years’ imprisonment for all the drugs. This would take into account the aggravating feature in this case, which is that there is a wide cocktail of drugs catering to a wide audience, and also taking into account that some buyers may mix the drugs to enhance the effect of the drug.

This was, as I have said, a retail outfit where the defendant was solely in charge and quite an organised outfit because when the drugs run out all he needed to do was making a telephone call and the drugs would be replenished.

I do accept, however, that the defendant is a drug addict, and that some part, a small part of the drugs found may have been for his own consumption, particularly, the drugs found on his person. However, I take into account that they were all separately wrapped and different drugs, ad there is great temptation, therefore, to disperse it to others.

So, I will deduct one year from the 10-and-a-half year starting point to take into account that the drugs were for his own consumption, not forgetting that simple possession of itself carries a prison term.

From the sentence of nine-and-a-half years, I also have to give an additional discount for the defendant’s plea and other matters which had canvassed this morning in chambers, and I therefore reduce that sentence by 40 per cent.

Therefore, the defendant will go to prison for five years and nine months.