HKSAR v. Kong Yun Fung

HCCC 202/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 202 OF 2017

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REASONS FOR SENTENCE

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1.The defendant has pleaded guilty at the earliest opportunity to the offence of possession of a dangerous drug (Count 1) and trafficking in a dangerous drug (Count 2). Both offences occurred on 27 August 2016. The drugs in Count 1 consisted of 0.55 g of a crystalline solid containing 0.51 g of methamphetamine hydrochloride, commonly known as Ice. The drugs in Count 2 consisted of 24.54 g of a crystalline solid containing 21.94 g of Ice.

2.The facts giving rise to the offences can be briefly stated as follows.  In the afternoon of 27 August 2016, the defendant who was in the company of a female was stopped by police officers as he was about to get into a private car, having just left his residence.  The police officers searched the car and found in a gap at the front passenger’s seat a plastic bag which contained 0.51 g of Ice.  After he was arrested and cautioned, he admitted that he was in possession of the drugs for his own consumption and asked for a chance. 

3.The police officers then searched the defendant’s residence.  In a cupboard inside his bedroom, the police officers found the following items: (1) a plastic bag containing 35 small empty plastic bags; (2) a bag containing: (i) nine plastic bags containing a total of 7.78 g of Ice; (ii) one plastic bag containing 13.8 g of Ice; (iii) one plastic bag containing 0.36 g of Ice; and (iv) two inhaling devices for Ice; and (3) a diary.  The diary contained entries of dates and many names with sums of money marked next to them.  The record contained in the diary was consistent with selling of drugs.

4.The police officers also seized from the defendant a mobile phone which recorded messages on WhatsApp and WeChat where the terms “Perfume” and “Pork” were mentioned.  These terms are commonly used in the drug trade as a reference to ketamine and Ice respectively.

5.At the time of the arrest, the defendant had been unemployed since January 2016 and the street value of the drugs was $8,681.

6.The defendant by his plea of guilty now accepts and admits that he was in possession of the drugs seized for the purpose of trafficking.

7.The defendant is 31 years old.  He was educated up to form three-level and thereafter completed a one-year course in construction. He then worked as a storekeeper and delivery worker but became unemployed in January 2016.  His parents are retirees and moved to mainland China in 2014. He has two elder sisters and at the time of the arrest lived with his eldest sister.  He has a number of prior convictions.  In November 2002, he was convicted of two separate offences of theft for which he was put on 12 months’ probation and fined $1000 respectively.  In February 2006, he was convicted for theft and ordered to serve 160 hours of community service.  In October 2013, he was convicted of two separate offences of possession of drugs for which he was ordered to attend a drug addiction treatment centre.

8.Ms Money Lo, on behalf of the defendant, submits that the defendant mixed with bad company and eventually he started taking drugs, having an addiction to Ice since 2014.  He is the father of a son with his former girlfriend, who gave birth to the son while the defendant was in custody in relation to the present offences.  The defendant’s parents who had retired to mainland China have now return to take care of the defendant’s son. I am told that the birth of his son has made him regretful for his past deeds and determined to turn a new leaf. 

9.Ms Lo also submits that the defendant has had an addiction to Ice for some time and this is evidenced by the fact that when he was arrested he was tested for Ice which proved positive and that two devices for the consumption of Ice, with traces of Ice having been found on them, were found in the defendant’s room.  She submits that a small proportion of the drugs were for the defendant’s own consumption and urges the Court to treat him leniently.  Whilst I am prepared to accept that the defendant had an addiction to Ice and had consumed Ice on the day of his arrest, I do not find that “all or a significant proportion” of the drugs as specified in Count 2 were for the defendant’s own consumption.  See HKSAR v Wong Suet Hau and Anor [2002] 1 HKLRD 69 at paragraph 34, and HKSAR v Tsoi Man Chun, CACC 414/2015, 27 March 2017, unreported.  The reason for my finding is that these drugs appeared to have been earmarked for selling as evidenced by the packaging of the drugs and the defendant’s diary listing transactions on the sale of the drugs. Furthermore, a separate package was found in the possession of the defendant when he was arrested outside his residence that he said was for his own consumption, and the defendant admitted that the drugs in his residence were for trafficking.

10.As to Count 1, the possession offence, I adopt a starting point of 9 months’ imprisonment which I reduced by one third for the defendant’s guilty plea to 6 months’ imprisonment. 

11.As to Count 2, the trafficking offence, the narcotic content of Ice of 21.94 g falls within the band of 10 to 70 g where the sentence after trial ranges from 7 to 11 years’ imprisonment according to the tariff case of HKSAR v Tam Yi Chun [2014] 2 HKLR 125.  For the narcotic content of drugs involved in this case, I adopt a starting point of 7 years and 9 months’ imprisonment, which I reduce by one third for the defendant’s guilty plea to 5 years and 2 months’ imprisonment. 

12.Taking into account the totality principle and the circumstances of the defendant, I order that the sentence for the possession offence run concurrently to the sentence for the trafficking offence.  I have borne in mind that the drugs found in the defendant’s possession, had they been included in the trafficking offence would not have made a marked difference to the sentence that I would have imposed.

13.Accordingly, the defendant is sentenced to a term of imprisonment of 5 years and 2 months.

Mr Andrew Cheng, SPP of Department of Justice, for HKSAR

Ms Money Lo, instructed by Kwok, Ng & Chan, assigned by Director of Legal Aid, for the defendant