HKSAR v. Fung Shiu Him, Simon

HCCC 295/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 295 OF 2016

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT:

Defendant, you have pleaded to a charge of trafficking in dangerous drugs. You admitted, on 16 October 2015, outside Staircase A, Ground Floor, King On House, Shan King Estate, Ming Kum Road, Tuen Mun, New Territories, you unlawfully trafficked in 16 grammes of a crystalline solid containing 15.62 grammes of methamphetamine hydrochloride and 0.72 grammes of a solid containing 0.62 grammes of ketamine.

On 16 October 2015, the police mounted an anti-dangerous drug operation at King On House, Shan King Estate, Tuen Mun. At about 2140 hours that day, the police officers saw you enter the lobby of King On House and you stayed there, looking around and checked your phone. At that time, you were carrying a grey bag. The police then intercepted you at the lobby but as there were so many people going in and out of the lift lobby, you were taken for a search outside Staircase A of the Ground Floor of King On House.

The drugs were found as follows. In your left trousers pocket, one plastic bag containing 11.1 grammes of a crystalline solid containing 10.8 grammes of methamphetamine hydrochloride. In the grey bag you were carrying was one plastic bottle containing three plastic bags containing 4.90 grammes of a solid containing 4.82 grammes of methamphetamine hydrochloride, one plastic bag containing the ketamine as stated in the charge and seven empty resealable plastic bags. The total amount of these drugs found was as stated in the charge.

You were arrested and, under caution, you said that you just wanted to make some money for your living by delivering dangerous drug ‘Ice’ to others.

The estimated market retail value of the drug ‘Ice’ was $5,056 and for the ketamine $92.

You are 35 years of age and single. You have 19 previous convictions on 13 occasions that you have had court appearances. Two of those are for possession of dangerous drugs, two are those are for injecting apparatus and one is for trafficking in dangerous drugs. For the trafficking offence, that was committed in 2013. You have been a drug-dependant since you were 17.

Mr David Boyton, your counsel, says that your record is consistent with you being a drug addict trying to earn more money, starting in 2011 with petty crime. In support of the fact that you had been drug-dependant and were taking ‘Ice’ at around the time of your arrest, Mr Boyton has submitted a urine report result from the Correctional Services Department, taken the day after your arrest, which showed that you tested positive for amphetamine.

Mr Boyton wished to assert on your behalf that the three smaller packets in your bag were for your own consumption. Upon my indication to him that I did not accept that the drugs in the bag were for your own consumption, Mr Boyton stated that you did not want to have a hearing to decide whether these were for your own consumption and continued that your greatest plea in mitigation was your plea of guilty.

On that basis, I take it that all the drugs were for trafficking, particularly given the circumstances at the time of your arrest at the scene when you said that you wanted to make some money for your living by delivering the dangerous drug ‘Ice’ to others.

On that basis, in regards to sentence, you have pleaded guilty after your case was committed to the High Court for trial. Your case was committed to the High Court on 24 June 2016 for trial and that was before HKSAR v Ngo Van Nam [2016] 5 HKLRD 1. The date of that judgment was 2 September 2016. You indicated your plea of guilty by letter to both the court and the prosecution on 16 June 2017. Therefore, the full one-third discount for your guilty plea still applies.

Defendant, you had been trafficking in 15.62 grammes of ‘Ice’ and following the guideline in Tam Yi Chun, for trafficking in amounts of between 10 to 70 grammes, a starting point of 7 to 11 years after trial is appropriate. Given the quantity you were trafficking, had you been convicted after trial, I would have taken a starting point of 7 years and 3 months’ imprisonment.

As for the ketamine, it is of a very small amount. Even if this amount was converted to ‘Ice’, it would be less than 1 gramme of ‘Ice’ and, therefore, there will be no difference in your sentence and your starting point shall not be increased.

Although you have a previous conviction for trafficking, that was some two years before you committed this offence. I shall therefore not enhance your sentence.

Taking the starting point of 7 years and 3 months, giving you the full one-third discount, you shall be sentenced to 4 years and 10 months’ imprisonment.