HKSAR v. Pun Fu Sang

HCCC 163/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 163 OF 2015

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Transcript of the Audio Recording
of the Sentence in the above Case
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COURT: Mr Pun, you have pleaded guilty to trafficking in dangerous drugs, contrary to section (4)(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, and you stand conviction upon your own plea.

You have pleaded guilty to trafficking in 29.30 grammes of ketamine; 0.39 grammes of cocaine; and 32.4 grammes of methamphetamine hydrochloride, or “Ice” as it is commonly called; as well as 0.11 grammes of nimetazepam.

The facts of the case have already been read out to you and you have agreed them by Mr Hemmings on behalf of the prosecution. That is that you were found in possession of all of those drugs, plus an electronic scale and 124 resealable plastic bags.

Initially on arrest and under caution you said that you had just been sacked from your job and that had made you unhappy and the drugs that the police found in your room were for self-consumption. But in interview, you said you had purchased the drugs from a friend for $8,000 about two weeks previously and, again, they were for self-consumption because you had been an addict for a few years.

You estimated in interview that the drugs that were found in your possession by the police would have lasted you approximately a month and according to the mitigation that has been offered on your behalf by counsel, that clearly is not true.

Mr Pun, “Ice” is an expensive drug habit for somebody who is unemployed and has no other income save for the CSSA that I can see in the papers that was due to your mother. It is very easy to turn to drugs and to crime in order to feed your habit.

The retail value of the drugs that you were found to be trafficking in and have pleaded guilty to was $11,672 in August 2014.

You are only 25 years of age and married. You are only educated up to Form 3, and sadly you were unemployed at the time of your arrest. You had held a job, Mr Lee says on your behalf, as a delivery worker.

You have a substantial criminal record since 2007. They are not matters in 2007, 2008 and even up to 2012 that are similar to the offences that you now face and I take into consideration the fact that the matters for possession of dangerous drugs for which you have been dealt with before, were matters where you appeared before the court after this offending.

But this criminal record shows that none of the disposals that have been meted out to you seem to have had any effect in deterring you from crime. Nevertheless, I am not taking any of that into account in the sentence I pass upon you.

In your considerable favour, and it is commendable, you have entered a plea at an early stage.

Individually, the drugs found in your possession and which you have pleaded guilty to trafficking, would attract the following starting points after trial.

You had 29.30 grammes of ketamine in your possession. The guideline case for ketamine is HKSAR v Hii Siew Cheng & Anor [2009] 1 HKLRD 1. But you also had a number of tablets of nimetazepam - 0.11 grammes of nimetazepam which, according to HKSAR v Wong King Kau [2010] 4 HKC 443, falls to be treated in a similar fashion to ketamine. That means a total of 29.41 grammes of both ketamine and nimetazepam.

The guideline range for between 10 and 50 grammes in the leading case of Hii Siew Cheng is 4 to 6 years, and therefore the starting point for 29.41 grammes would be approximately 5 years.

You also had on you 32.4 grammes of methamphetamine hydrochloride. The guideline case for trafficking in “Ice” after June 2014 is now HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. The guideline range for between 10 and 70 grammes is 7 to 11 years. And, therefore, 32.4 grammes of “Ice” attracts a starting point of approximately 8 years and 6 months.

The 0.39 grammes of cocaine falls to be considered under HKSAR v Lau Tak Ming [1990] HKLR 370, and the sentencing range for up to 10 grammes of cocaine is 2 to 5 years. You were, therefore, at risk of a starting point of 2 years for the cocaine alone.

So looking at those sentences, Mr Pun, you would have been facing a starting point of 15 years and 6 months without consideration of any other aggravating factors. Such a sentence is clearly excessive and does not reflect the criminality of your current offending.

In HKSAR v Yip Wai Yin & Anor [2004] 3 HKC 367, the Court of Appeal considered the proper approach to sentencing where the offender trafficked in a cocktail of drugs. In that case the court looked primarily at the most serious drug, which in your case is the 32.4 grammes of “Ice”, and the guideline starting point for that drug, the “Ice”, after trial as I have already indicated is 8 years and 6 months.

There then needs to be an upward adjustment for the remainder of the drugs, that is the ketamine, nimetazepam and the small amount of cocaine.

In HKSAR v Wong King Kau CACC 269/2009, Tang VP noted that the “Ice” and ketamine are not comparable drugs. In that case the court found that 60 grammes of “Ice” was the equivalent of 300 grammes of ketamine, a ratio of 5 to 1.

That has changed slightly, Mr Pun, since the case of Tam Yi Chun and a better comparison now would be 70 grammes of “Ice” with 500 grammes of ketamine, a ratio of 7 to 1 because both those quantities attract a starting point of 11 years’ imprisonment.

But the relationship between those two drugs, as the weights increase, changes quite a lot, so it is only a rough guide. And here I accept that we are talking about a relatively small amount of drugs, so as a rough rule of thumb, I believe that an enhancement of 14 months representing approximately a seventh of a sentence for the 32.4 grammes of “Ice” would be appropriate for the ketamine, nimetazepam and cocaine.

That would bring the starting point to 9 years and 8 months.

There is also an aggravating feature, which is that you had upon you multiple drugs, a cocktail of drugs, and it has been noted that being in possession of a range of drugs allows a wider market to be available to you for the sale of those drugs. As you no longer suggest that any of those drugs were for your personal consumption, I will add just one month to my starting point of 9 years and 8 months, which makes 9 years and 9 months as a total starting point.

The trafficking of dangerous drugs is a very serious offence, Mr Pun, and deterrence is therefore an overwhelming consideration. So whilst we have heard your personal circumstances and the reason for the commission of this offence from Mr Lee, in the face of such a serious offence there is nothing which has been said on your behalf which would warrant a more lenient sentence.

Giving you a full discount for your early indication of plea, the sentence which I pass upon you is one of 6 years and 6 months.