HKSAR v. Fung Shiu Him, Simon

DCCC 556/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 556 OF 2013

____________

--------------------

REASONS FOR SENTENCE

1.The defendant pleads guilty to one charge of trafficking in 28.64 grammes of a powder containing 16.12 grammes of ketamine, contrary to section 4 of the Dangerous Drugs Ordinance, Chapter 134 (charge 1); one charge of possession of 0.19 gramme of a crystalline solid containing 0.18 gramme of methamphetamine hydrochloride (“ice”), contrary to section 8 of the Dangerous Drugs Ordinance (charge 2); and one charge of possession of apparatus fit and intended for inhalation of a dangerous drug, contrary to section 36 of the Dangerous Drugs Ordinance (charge 3).

2.In summary at about 18.32 on the 2 April this year the defendant was leaving his home at Room 1127, Hing Cheung House, Tai Hing Estate in Tuen Mun when he was intercepted by the police.   Two mobile phones, two keys and HK$2,050 were found during a body search. 

3.Room 1127 was then searched and inside the defendant’s bedroom the police found a metal box containing two re-sealable plastic bags and a piece of folded paper containing the ketamine and one re-sealable plastic bag containing the ice.  The police also found in the bedroom apparatus for inhaling ice; a bundle of 339 re-sealable plastic bags; and an electronic scale.

4.The defendant was arrested and under caution said the ketamine and ice were for his consumption.  The next day in a video interview the defendant explained that sometimes when he could not consume all the ketamine himself he would share the drugs with his friends who would sometimes repay him.  Sometimes the defendant would call them but mainly the friends would contact him to see if he had any drugs to give them (see for example counters 204-208, 358 and 627-629). 

5.In passing sentence I have carefully considered everything said on behalf of the defendant by Mr Szeto, including the defendant is a drug addict and that he has no previous convictions for trafficking in drugs.

Trafficking in dangerous drugs

6.In Secretary for Justice v Hii Siew Cheng[2008] 3 HKC 325 the Court of Appeal laid down guidelines for trafficking in ketamine.  Where the narcotic content is between 10 and 50 grammes sentence after trial falls within the range of 4-6 years imprisonment. I am satisfied the proper starting point after trial for 16.12 grammes of ketamine is 4 years and 3 months imprisonment.

Own use

7.The defendant says that about 10 grammes of the ketamine were for his own use.  Taking into account the defendant has served DATC in the past; he was found in possession of equipment for taking drugs, albeit for a different drug to ketamine; and that he admitted at an early stage and in some detail his consumption of ketamine, I am prepared to accept some of the ketamine may have been for his own use but not as much as 10 grammes.

8.In deciding how much weight should be attached to the fact some of the drugs were for the defendant’s own use I have considered the decision in HKSAR v. Wong Suet Hau [2002] 1 HKLRD 69, in particular paragraphs 33 and 34 as applied in HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121 and HKSAR v Cheuk Kin Man [2010] 5 HKLRD 561.

9.Taking into account the quantity of ketamine; the packaging; the drugs were found at the defendant’s home; possession of drugs carries a sentence in any event; and the latent risk factor, I am satisfied the starting point should be reduced by 6 months to one of 3 years and 9 months imprisonment. Giving the defendant full credit for his plea of guilty reduces the sentence to 2 years and 6 months imprisonment.

Possession of ice and possession of apparatus fit and intended for inhalation of ice

10.In HKSAR v Mok Cho Tik [2001] 1 HKC 261 the Court of Appeal said the starting point for possession of drugs which a bona fide user normally has in his possession should be in the range of 12 to 18 months but this does not seek to exclude magistrates from imposing lesser terms for very small quantities where the circumstances so warrant.  

11.Had these charges stood alone the defendant would have appeared in the magistracy.  Taking into account the small quantity of ice, I am satisfied a starting point of 9 months imprisonment is appropriate.  Giving the defendant full credit for his plea of guilty reduces the sentence to 6 months imprisonment (see for example HKSAR v Wan Choi Fai HCMA 250/1998).

12.For possession of apparatus I am satisfied a starting point of              6 months imprisonment is appropriate.  Giving the defendant full credit for his plea of guilty reduces the sentence to 4 months imprisonment.

Totality

13.I am satisfied concurrent sentences are appropriate for possession of ice and apparatus for inhaling ice.  The two charges are however separate and distinct from the trafficking charge which concerns ketamine.   Taking this into account I order 2 months to be made consecutive to the sentence for trafficking making a total sentence to be served by the defendant of 2 years and 8 months imprisonment, which I am satisfied properly reflects the defendant’s criminality on the three charges.

14.The defendant is convicted and sentenced as follows:

CHARGE 1 – 2 YEARS AND 6 MONTHS IMPRISONMENT;

CHARGE 2 – 6 MONTHS IMPRISONMENT; 2 MONTHS CONSECUTIVE AND 4 MONTHS CONCURRENT TO CHARGE 1; AND

CHARGE 3 – 4 MONTHS IMPRISONMENT CONCURRENT TO CHARGES 1 & 2.

TOTAL SENTENCE TO BE SERVED IS 2 YEARS AND 8 MONTHS IMPRISONMENT.