HKSAR v. Fu Man Fai

DCCC 738/2022

[2023] HKDC 586

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 738 OF 2022

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REASONS FOR SENTENCE

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1.The Defendant pleaded guilty to one charge of Trafficking in a Dangerous Drug contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134. These are my reasons for sentence.

Summary of Facts

2.The Summary of Facts admitted by the Defendant are as follows:

(1)  On the evening of 13 April 2022, a team of police officers including PC 27472 (PW1)  mounted an anti-narcotics operation near Mansion Street in Quarry Bay.

(2)  At around 2123 hours, PW1 and his team saw the Defendant acting furtively and intercepted him for a stop and search at the junction of Mansion Street and Tsat Tsz Mui Road. Both streets lead to a dead-end alley. The Defendant attempted to escape but was subdued. Upon search, the following items were found on the Defendant:

(a)  1 plastic bag containing 24.0 grammes of a solid containing 16.3 grammes of cocaine (E1);

(b)  2 mobile phones with 2 SIM cards inserted;

(c)  2 brand new SIM cards;

(d)  Cash in the sum of HK$84.

(3)  The Defendant was arrested. He remained silent both under caution at scene and in the subsequent cautioned video-recorded interview.

(4)  The Government Chemist later confirmed the narcotic content of E1;

(5)  The estimated street value of E1 was HK$ 21,816.

(6)  A house search was conducted at the Defendant’s residence at a public housing estate in Sham Shui Po but nothing suspicious was found.

(7)  At the material time, the Defendant had in his possession E1 for the purpose of unlawful trafficking.

The Defendant’s Background

3.The Defendant was born in 1999 and is now 23 years old.  He completed an Associate Degree in HKU SPACE and was working as an estate agent sometime prior to his arrest.  He lived with his parents and 3 elder siblings.

4.The Defendant is a first offender.

Discussion

5.The Court of Appeal has laid down guidelines for trafficking in different types of drugs.  The subject narcotic in the present case is cocaine. There is no dispute that the tariff laid down for trafficking in heroin as in R v Lau Tak Ming & another [1990] 2 HKLR 370 is applicable to trafficking in cocaine: See Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69.

6.Pursuant to that tariff, the appropriate starting point for trafficking in 10 to 50 grammes of cocaine is 5 to 8 years’ imprisonment.

7.The present case only involves a single type of drug.  The arithmetic approach is appropriate.  According to that approach and pursuant to the tariff, the appropriate starting point for trafficking in 16.3 grammes of cocaine rounded down is 5 years and 5 months (i.e. 65 months)  imprisonment.

8.The Defendant is entitled to a full one-third discount for his timely plea.  The sentence is reduced to 43.33 months.  Counsel admitted that apart from his guilty plea, there are no other mitigating factors. Clearly a Training Centre order would be manifestly inadequate as the usual period is around 18 months.  I sentence the Defendant to 43 months’ imprisonment (i.e. 3 years and 7 months).