HKSAR v. FUNG YU FUNG

HCCC 117/2019

[2019] HKCFI 2516

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 117 OF 2019

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

On 31 July 2018, around 2 am, police officers intercepted a taxi in Sham Shui Po and the accused and another person were in the taxi. The drugs were found in the possession of the accused.

The accused was searched, and in his trouser pockets were found:

(1) six plastic bags containing a total of 10 grammes of a crystalline solid containing 9.87 grammes of methamphetamine hydrochloride;

(2) 26 plastic bags containing a total of 52.37 grammes of a solid containing 35.86 grammes of ketamine; and

(3) three plastic bags containing a total of 0.60 grammes of a solid containing 0.52 grammes of cocaine.

The accused was arrested and cautioned for trafficking in dangerous drugs. He chose to remain silent.

The residence of the accused was searched, nothing incriminating found. There was no equipment for consuming dangerous drugs found there.

As at July 2018, the estimated retail prices of the three drugs found in the possession of the accused were as follows:

(1) methamphetamine hydrochloride $5,400;

(2) ketamine $26,500; and

(3) cocaine $700.

Following his arrest, the accused came before a magistrate. In the result, the magistrate committed the accused for sentence following his plea of guilty and the admission of a Summary of Facts. The order for committal was made on 1 April 2019.

The admission by way of his plea of guilty before the magistrate, together with the acceptance of the Summary of Facts, is an admission that at the time he was intercepted by the police he was in possession of the drugs seized from him for the purpose of unlawful trafficking.

Background and Mitigation

The accused was born in Hong Kong. He was born on 27 January 2001, which makes him 18 years of age. He is the holder of a permanent identity card. His education was up to Secondary 3 through the Vocational Training Council.

He has worked in a fast food restaurant and as a car attendant. I am informed that he was unemployed at the time of his arrest.

He lives with his father in Tai Kok Tsui.

He has two previous convictions, one is for theft for which he received a 24-month probation order, and the second one was for blackmail in 2017. For that, he was ordered to be detained in a detention centre. I adjourned the matter to learn in more detail of that order. I learned since the development that on 29 October 2017, that the accused completed the detention order but was subjected to a supervision order of 1 year and that order was to expire on 30 October 2018. Of course the conduct the subject of these charges occurred a few months before the expiration of the supervision order and was in breach of that order. The Commissioner of Correctional Services instituted what is known as a recall order and the accused was detained for a period of 3 months and that was completed on 29 October 2019. He was then transferred to the Pik Uk Correctional Institution which was part of his remand in relation to the current case. It is agreed between the parties that the recall order was a punishment for breaching the supervision order.

Counsel for the accused submitted that this offence was the product of momentary greed on the part of the accused. That submission must be accepted because there is no other rational explanation for the conduct of the accused. It is also supported by the mitigation letters that I have received in this case which point out that momentary greed is the explanation. These letters also make the point that the accused is now truly remorseful.

I have also learned that this young man came from a broken home and was for part of his life in foster care. It is well known that foster care can be a brilliant island of strength and sanity and support in difficult times for a young man. But sometimes that does not quite work out and it can also unintentionally be a bit of a recipe for disaster. Regrettably, despite the best intentions of all concerned it seems that there is a substantial risk that it was the latter. I am touched and moved that his family have gathered in this court to support the accused. That matters.

Sentencing principles - trafficking in dangerous drugs

The accused was carrying three different drugs. For many years, the community of Hong Kong has taken a severe view of drug trafficking - particularly in relation to drugs such as the three drugs found in this case. It is easy to see why. Cocaine and ‘Ice’ have terrible consequences for the individual. They are both addictive. ‘Ice’, in particular, is savagely addictive. Ketamine is also a highly dangerous drugs, the ingestion of which poses a serious risk and other consequences for the user. Ridding oneself of an addiction, particularly to cocaine and ‘Ice’, is to say the very least, an arduous process and sadly, history demonstrates that attempts to rid oneself of an addiction to cocaine is fraught with instances of disappointment. However, there are other serious consequences for the community. One of those consequences involves the deployment of medical and health facilities to help people who have become addicted to these drugs. There are consequences - sometimes very serious ones - for the families of those who become addicted to cocaine or ‘Ice’.

The view of the community is reflected in the maximum sentence provided by section 4 of the Ordinance. That provides for convictions on indictment that the maximum sentence is life imprisonment or a fine of $5,000,000. The view of the community is also reflected by the courts in the nature of the sentences and the levels of those sentences traditionally imposed for drug trafficking. The policy underlying the approach to sentencing for drug trafficking cases is to impose a deterrent sentence. To this end, the courts have provided sentencing guidelines for various forms of dangerous drugs, including the drugs the subject of the charge in this case.

The source of guidelines in relation to the trafficking of cocaine starts with the decision of the Court of Appeal in R v Lau Tak Ming and Others [1990] 2 HKLR 370. The correctness of guidelines in relation to cocaine was confirmed in the decision of the Court of Appeal in HKSAR v Abdallah [2009] 2 HKLRD 437.

The applicable sentencing guidelines for a sentence after trial of quantities up to 10 grammes, the sentencing range between 2 and 5 years is appropriate.

In relation to ‘Ice’, the guidelines were articulated in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. The guidelines suggested for quantities involved in the present case for ‘Ice’ of up to 10 grammes would attract a sentence of between 3 and 7 years’ imprisonment ([2014] 3 HKLRD 691, para 34). The range in question is upon the basis of a conviction after trial. That is the basis upon which the starting point is calculated.

In relation to ketamine, the sentencing guidelines for trafficking in ketamine were outlined in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, 29 – 20 reflect this. Relevant to this case, the Court of Appeal suggested that for cases involving between 10 grammes and 50 grammes, that a sentence of between 4 and 6 years’ imprisonment is appropriate.

Sentencing where there is more than one drug involved

A further dimension to the sentencing exercise which is required in the present case is to consider the issue arising from the fact that there is a collection of different dangerous drugs to which the accused has pleaded guilty. The authorities identify different approaches. The approaches identified by the authorities recognise that the approach where a sentence for each component of the collection of drugs in which the accused was trafficking might, if they were simply added together produce a result which is unjust. That is, in the final result, a reflection of the basic principle that sentencing is an art and not a mathematical exercise and the art of sentencing is devoted to producing a just result given the circumstances of the defendant. A just result in this context is against the background of the imperative which arises from the community and, thus the courts taking a very strong view in relation to the trafficking of dangerous drugs. The different approaches are articulated in HKSAR v Yip Wai Yin [2004] 3 HKC 367; HKSAR v Ko Ka Hing [2009] 4 HKLRD 856; HKSAR v Wong Kin Kau [2010] 4 HKC 443, and HKSAR v Chan Yuk Leong CACC 318/2013. This is, in the final result, a reflection of the basic principle that sentence is, as I say, an art, not a mathematical exercise.

The essence to the appropriate approach is that if the drugs are approximately similar in nature, then the approach known as the “combined approach” would be appropriate and that is to be seen in HKSAR v Ko Ka Hing [2009] 4 HKLRD 826, §3. The Court of Appeal in that case, Justices Cheung and Tong, said that there might necessarily have to be adjustments even if the combined approach is used to avoid absurdity.

In HKSAR v Wong Kin Kau (above), the Court of Appeal indicated that whichever approach is adopted, the paramount consideration was the totality of the overall starting point. In that regard, in that case, Tang VP, indicated that often the combined approach was more likely to lead to that result. ([2010] 4 HKC 443, §5 - 6) That approach, so it seems to me, is the appropriate one for the instant case.

Step 1 requires the determination of the relevant starting points for each drug. The starting point is fixed by what would be the appropriate sentence had the case gone to trial. On the basis of the sentencing bands already identified, the appropriate starting points in pure mathematical terms are as follows:

(1) ‘Ice’: 9.87 grammes, would attract a starting point of about 83.3 months’ imprisonment;

(2) Cocaine: 0.52 grammes cocaine, would attract a starting point of about 25.8 months; and

(3) Ketamine: 35.86 grammes of ketamine would attract a starting point of about 63.5 months.

Plainly, to sentence the accused on the basis of treating each drug separately and adding up the sentence for each drug would produce a sentence in the vicinity of just over 14 years. That would be a totality which does not reflect the justice of the case in my judgment.

The next issue is which of the three drugs in the circumstances of the case should be regarded as the most serious. On any realistic view, that must be ‘Ice’. The normal calculation of the starting point for the quantity of ‘Ice’ involved in this case produces a serious penal sanction, notwithstanding in terms of weight, there is more ketamine than ‘Ice’ in the possession of the accused. However, there is a more important reason which makes me think that ‘Ice’ is the most serious and that is that in my judgment, it is the most harmful of the drugs. It is addictive. It is devilishly difficult to rid oneself of the addiction and the conduct of persons on ‘Ice’ is well known to be potentially both dangerous to the consumer of the ‘Ice’ but perhaps, more importantly, to the members of the family of the consumer and the wider public. It is appropriate to take judicial notice of the fact that putting a person who is affected by ‘Ice’ behind the wheel of a vehicle is nothing short of a recipe for disaster. Accordingly, notwithstanding that ketamine is the drug which is the most substantial by reference to weight, ‘Ice’ is far and away the most serious. (The position might be substantially different if the amount of ‘Ice’ in the possession of the accused was substantially smaller.)

Absurdity test

The appropriate test in relation to the consequences of ‘Ice’ being the most serious and applying the absurdity test is that if all the drugs seized were ‘Ice’ that would produce a combined weight of 46.25 grammes and the mathematical starting point would be of the order of 113 months.

Conversion test

On the basis of the conversion test, trafficking in 35.86 grammes of ketamine would result in a sentence in the order of 63 months, that being the approximate equivalent of trafficking in just over 5.7 grammes of ‘Ice’.

0.52 grammes of cocaine would attract a sentence which probably doesn’t add greatly to the equation on that premise. Trafficking in 35.86 grammes of ketamine and 9.87 grammes of ‘Ice’ and 0.52 grammes of cocaine would be the equivalent of trafficking in 15.6 grammes of ‘Ice’, that is upon the basis of a calculation of 9.87 + 5.73 + 0 (for all practical purposes, zero). The zero is for the cocaine. The mathematical starting point would accordingly be something of the order of 88 months’ imprisonment.

Ratio test

The ratio test appears to produce a result of about 79 months’ imprisonment. I have set out in my reasons the table which I think justifies that conclusion.

Combined approach

The absurdity test, the conversion test and the ratio test are a means to the ultimate object of providing a cross-check as to where the appropriate sentence lies. The ultimate result still has to meet the objects of the sentencing policy of the courts of Hong Kong which is deterrence, plain and simple, combined with a recognition that a separate treatment of each drug together with a consecutive sentence might not produce a just outcome even against the imperative of deterrence. It seems to me that a starting point of 82 months, that is 6 years and 10 months, would produce a just result.

Discount for a guilty plea

The authorities demonstrate that a person who pleads guilty at the earliest practicable opportunity is ordinarily entitled to a discount from the appropriate starting point of 33 per cent.

Disposition

In this case, we see played out in stark terms the tragedy of a young man being tempted to carry drugs for the short term and effectively miniscule reward and given the cost to himself and his family of the sentence of imprisonment that now must be imposed. The letters of mitigation received from his family demonstrate cogent witness to that proposition. When this young man comes out of prison, the fact of his conviction will make him probably less employable. To that end, I profoundly hope that during the time which must be now spent in prison by this man that he will grasp with both hands any educational opportunity which is open to him and which would better equip him for life after prison. If he does not, then the consequences of his conduct and the sentence of imprisonment which must necessarily be visited upon him as a result of this conduct will be felt for many, many years after he comes out of prison. The time is now in terms of making critical decisions for this man’s future. The profound wish of this court is that the minute he is placed in prison, he will take every possible step to equip himself for life after prison.

Applying the discount of 33 per cent to the starting point of 6 years and 10 months would result, of course, in a sentence of 4 years and 6 months. However, although the detention in the detention centre following the recall order was for the breach of the supervision order, there is the possibility that the accused may harbour some belief that he has been, in part, punished for the drug trafficking already. In my view, this is not so but to err on the side of mercy (which is in my opinion never a bad thing), I intend to reduce the final sentence by 1 month which would mean that the order of this court is that the accused go to prison for 4 years and 5 months and that is the order of the court.