HKSAR v. FONG FU WAH

DCCC 411/ 2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 411 OF 2009

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Reasons for Sentence

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The charge and facts

1.  The Defendant pleads guilty to trafficking in a dangerous drug, namely 52.76 grammes of a powder containing 43.4 grammes of ketamine.

2.  At about 0045 h on 18 February 2009, the police were conducting anti-drugs patrol on Ashley Road towards Peking Road when they saw the Defendant looking around in a furtive manner.  They intercepted the Defendant and revealed police identity.  He tried to flee but was caught not far away.  A body search of his jacket pocket yielded four transparent plastic bags containing a substance later analysed and weighed to be 52.76 grammes of a powder containing 43.4 grammes of ketamine.

3.  After arrest and caution, he said the “K” powder was for his own consumption and not for sale.  In a cautioned interview on 10 March 2009 in Queen Elizabeth Hospital, he said that he could not remember what happened on 18 February 2009 due to his poor health, and that he was not a drug addict. 

The sentencing guidelines

4.  The Court of Appeal in Secretary for Justice v Hii Siew Cheng CAAR 7/2006 has laid down new sentencing guidelines in place of HKSAR v Lee Tak-kwan [1998] 2 HKLRD 46 for trafficking in ketamine as follows:

(1)  up to 1 gramme – within the sentencer’s discretion;

(2)  over 1 gramme to 10 grammes – 2 to 4 years’ imprisonment;

(3)  10 to 50 grammes – 4 to 6 years’ imprisonment;

(4)  50 to 300 grammes – 6 to 9 years’ imprisonment;

(5)  300 to 600 grammes – 9 to 12 years’ imprisonment;

(6)  600 to 1000 grammes – 12 to 14 years’ imprisonment; and

(7)  over 1000 grammes – 14 years upwards.   

Mitigation put forward

5.  The Defendant is 40 years of age.  He has 7 previous convictions but no similar.  He received F.3 education.  His last job before arrest was as a restaurant worker.  He could not work too hard in the literal sense because he suffered from diabetes and had to inject insulin from time to time.  He lived with his aged parents.  He looked after the parents.  Mitigating letters from the parents and himself revealed that being the only son out of eight daughters, he was over-pampered by the parents.  He mixed with bad peers and became one of them. 

The sentence I pass

6.  The quantity of ketamine in our present case falls within the band of 4 to 6 years’ imprisonment.  It was for the purpose of trafficking.  I take a starting point of 5 years and 6 months.  Because of his plea of guilty, I reduce it to 3 years and 8 months.  There are no other mitigating factors.  This is the sentence I pass.