HKSAR v. FUNG TSZ HIN

DCCC 745/2017

[2018] HKDC 201

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 745 OF 2017

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REASONS FOR SENTENCE

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1.  Defendant Fung Tsz Hin pleaded guilty before me to one charge of trafficking in dangerous drugs contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

Admitted facts

2.  The facts admitted by Mr Fung can be summarized as follows.

3.  In the early morning of one day, he was stopped by the police outside Hoi Yat Court (Tower 6) of South Horizons.  In his trouser pocket were two re-sealable plastic bags containing:-

(a)   15 plastic bags containing a total of 2.47 grammes of a solid containing 2.34 grammes of cocaine;

(b)   one HK$50 banknote folded into a packet containing 0.15 gramme of a powder containing 0.15 gramme of cocaine; and

(c)   three plastic bags containing a total of 3.71 grammes of a powder containing 2.8 grammes of ketamine.

4.  Under caution at scene, he said the cocaine was for his self-consumption, and some would be sold to others; he also said that ketamine was for his self-consumption.

5.  Back at the station, under caution, he said:-

(a)   The drugs were his;

(b)   he bought the cocaine for around HK$200 which he would sell to his friends at a higher price;

(c)   he bought the drugs from one “Ah Wing” in Mongkok;

(d)   he bought the cocaine for HK$270 per pellet; and

(e)   he has been a drug addict of cocaine for 6-7 years.

6.  The street value of the cocaine was estimated to be HK$2,219.  The street value of the ketamine was estimated to be HK$902.

7.  He now admits that he possessed the cocaine and the ketamine for purpose of trafficking.

Criminal record

8.  The criminal record which is agreed shows that Mr Fung has three previous convictions entered between 2011 and 2013 with none of them similar though he has been sent to prison for 6 months for his first conviction.

Personal particulars

9.  Mr Fung’s antecedents statement is agreed which shows that he is aged 24 and received up to F5 education.  He had worked as a kitchen worker then a delivery worker and lastly a warehouse keeper earning around $12,000 a month. Mr Fung claimed he was a drug addict and consumed ketamine and cocaine 2 to 3 times a day.  Mr Fung is single and before arrest lived with his father (60) and mother (50) in Wah Fu Estate.  He has two elder sisters who are both married.

Mitigation

10.  Ms Vivien Chan of counsel assigned by the Director of Legal Aid mitigated on Mr Fung’s behalf.

11.  Ms Chan submitted that Mr Fung is young, and for the last conviction, that of possession of dangerous drugs (for which he was placed under a probation for 18 months), Mr Fung voluntarily stayed in a drug centre to rid himself of drugs.  His mother who once had cancer had been cured.  Both parents are in court to support him.  Before arrest, he contributed $2,000 to $3,000 from his monthly salary to his family.  When he was at the drug centre, he mixed with bad friends.  That’s why on this occasion, he bought drugs for himself and his friends.  He is ashamed of letting his parents down again.

12.  Ms Chan submitted that Mr Fung has pleaded guilty at the first instance; that he has learned a lesson and hopes to turn a new leaf.

13.  Ms Chan submitted two mitigation letters written respectively by Mr Fung’s mother and a social worker.  Mrs Fung’s letter in Chinese spoke of how she had joined a Parents Support Group to learn ways to help children who had turned to drugs.  The social worker’s letter confirmed that position.

14.  Lastly, upon enquiry from me, Ms Chan confirmed that “self-use” formed no part of the mitigation.

Sentence

15.  Drug trafficking is a serious offence.  It destroys the fabric of society of which families are constituents.  Mrs Fung knows this well and I do hope his son will learn it from his present experience too.

16.  In this case, we are dealing with a cocktail of drugs.

17.  For trafficking in cocaine, the tariff for heroin set down in R v Lau Tak Ming [1990] 2 HKLR 370 applies (see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69).  If Mr Fung had dealt with 2.49 grammes of cocaine alone, the starting point would have been in the region of 2 years’ imprisonment.

18.  For trafficking in ketamine, the tariff is set down in the authority of Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1.  If Mr Fung had dealt with 2.8 grammes of ketamine alone, the starting point would have been in the region of 2 years’ imprisonment also.

19.  There are basically two different approaches that the court could use when dealing with a cocktail of drugs (see HKSAR v Yip Wai Yin [2004] 3 HKC 367 and HKSAR v Wan Lau Mei [2014] 4 HKC 75).

20.  There is the individual approach whereby the sentences for the individual drug are simply added up to arrive at the whole.  In the present case, that would give a starting point of sentence in the region of 4 years.

21.  There is the combined approach whereby the most serious drug determines the starting point, which is then adjusted upwards for significant quantities of the other drugs.  Here, there are the two types of drugs which are of approximately equal quantity; and cocaine is the more potent.  For this exercise, I would adopt the starting point for the quantity of cocaine which is about two years and adjust it upwards for an almost equal quantity of ketamine.  But what is the quantum of that adjustment?  The paramount consideration is the totality of the overall starting point.  To find out what might be a reasonable adjustment, I will go through three cross-checking tests as consolidated and exemplified in HKSAR v Chan Yuk Leong, CACC 318/2013.

Absurdity test

22.  The first test is the absurdity test where the court compares the proposed sentence with a sentence where it is assumed that the entire quantity seized contained only the most serious (ie the most potent) drug.  Here, the total weight of the drugs is 5.29 grammes.  If it had been all cocaine, then a starting point of 3.5 years might be appropriate.

Conversion test

23.  The second test is the conversion test whereby the court compares the tariffs applicable to different drugs to arrive at a conversion rate, so that a single tariff for one drug could be applied to the entire quantity.  The way this test works is illustrated by using the quantities in the present case. Take cocaine as the primary drug; the task is to convert ketamine in the present case into a quantity of cocaine which will entail a sentence roughly equal to the sentence for the ketamine.  The sentence for trafficking in 2.8 grammes of ketamine is about 2 years; and that is the sentence for trafficking in 2.5 grammes of cocaine.  If one were to add this converted quantity to the quantity of cocaine in this case ie 2.49 grammes, then one would obtain a total amount of about 5 grammes of cocaine.  Applying the tariff guidelines for cocaine to this total amount of cocaine would give a sentence of 3.5 years.

Ratio test

24.  The third test is the ratio test.  This is done by first of all finding the ratio by weight of narcotic of each individual drug to the total weight of narcotic.  Here, the total weight is 5.29 grammes.  Cocaine weighing 2.49 grammes is about half of the total weight.  Ketamine weighing 2.8 grammes is also about half of the total weight.

25.  Next, one would work out what the sentence is likely to be assuming the entirety of the drug was each of the individual drug.  For example, here, if the entire weight of the drug ie 5.29 grammes had been cocaine, one would obtain 3.5 years as a sentence.  This would of course be the same result as what we obtained in the absurdity test.  On the other hand, if the entire weight of drug had been katamine, one would in the present case obtain 3 years as a sentence.

26.  The third step is to work out individual sentences for each drug factoring in the corresponding ratio.  For example, here, we factor in the ratio for cocaine ie 0.5 into the sentence for 5.29 grammes of cocaine ie 3.5 years to arrive at an individual sentence of 1.75 years.  And if we do the same for ketamine, then we factor in the ratio of 0.5 into the sentence for 5.29 grammes of ketamine ie 3 years to arrive at an individual sentence of 1.5 years.

27.  The last step is simply to add the individual sentences together to arrive at the sentence for the whole weight of drugs which is 3.25 years or 3 years 3 months.

28.  Having conducted the three cross-checking tests, I know that an overall starting point of 3 years 3 months will not be too high.

29.  In sentencing an offender for trafficking in a cocktail of drugs, I must bear in mind two aggravating factors re-emphasized in HKSAR v Chan Yuk Leong, supra, namely (1) the ability of the trafficker to cater to a wider market; and (2) the effect on users of combinations of dangerous drugs.

30.  In the result, the approach that I will adopt is the combined approach. I will adopt a starting point of 2 years for the cocaine here and adjust it upwards by 1 year 3 months to cater for the presence of the ketamine to arrive at a starting point of 3 years and 3 months.

31.  Mr Fung had indicated an early plea.  I will give him the full 1/3 discount.

32.  There are no other mitigating factors of sufficient weight to warrant a further discount.

33.  Mr Fung please stand.

34.  I sentence Mr Fung to 26 months’ imprisonment.