HKSAR v. Fung Wing Yeung

DCCC 1089/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1089 OF 2014

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Reasons for Sentence

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1.The defendant pleaded guilty before me to two charges of trafficking in a dangerous drug.

2.The particulars are that the defendant on 23 July 2014 respectively outside and at Room 2001, 20th Floor, Hong Lai House (Block D), Hong Yat Court, Lam Tim, Kowloon unlawfully trafficked in respectively 13.6 grammes of a powder containing 9.53 grammes of ketamine and 179.37 grammes of a powder containing 132.73 grammes of ketamine.

Summary of the facts admitted by the defendant

3.On the date as referred to in the charges, police was laying ambush outside the address specified in the charges, which was the residence of the defendant.  Suddenly, the defendant came out from it, whereupon he was stopped by the police.  From the waistband of his underpants were found two plastic bags containing the drug particularised in the first charge.

4.Upon arrest and caution, the defendant said that he had intended to take the two packets of “K Chai” to Billy.

5.The defendant was taken back into the premises. He suddenly rushed into a room and attempted to shut the door, keeping the police outside.  He failed.

6.Once the police got into the room, he pointed to a plastic cabinet, saying that he had hidden some “K Chai” in it.  Police conducted a search of it and found a purple plastic bag containing 15 plastic bags, with the amount of drug as particularised in the second charge in them. Police also found in the plastic cabinet an electronic scale and 51 empty plastic bags.

7.Under further caution, the defendant admitted that the “K Chai” belonged to him.

8.The defendant’s DNA was found on the outside of the purple plastic bag.

9.The estimated street values of the two batches of drug were estimated to be respectively HK$1,713 and HK$22,600.

10.The defendant admits before me that he possessed both batches of drug for the purpose of trafficking.

11.On the person of the defendant was found cash to the amount of $5,150, a mobile phone and keys to the premises.

Personal particulars of the defendant

12.The defendant is aged 20, with a clear record. 

13.He studied up to Form 3 level and left school at 16.  He then went to VTC, the Vocational Training Council, for further studies, but did not complete the certificate programme for mechanical engineering.

14.Next, he got onto an apprentice programme in a shipping company responsible for repairing ships travelling between Hong Kong and Macau, but did not complete that either.

15.The last job he had before becoming unemployed at the time of the offences was a kitchen-hand for three years, earning $12,000 a month.

Mitigation

16.Mr Ho, acting for the defendant, submitted that the defendant was led astray by an old classmate into committing the offences and that this was the first time he committed this type of offences.  The promised reward for completion of the task, which he had not yet received, was $4,000.  In respect of Charge 1, the defendant had received a telephone call from someone who instructed him to deliver the drug to others.  

17.The defendant and his family understood there are sentencing guidelines which this court has to follow.

18.The defendant pleaded guilty and is remorseful for what he has done.

19.The defendant is from a broken family.  When he was 1 year old, his father separated from his mother.  He was raised by his grandmother.  All the defendants’ relatives are in court to show support.

20.Mr Ho recognises that the correct global starting point for the total amount of drug is between 6 and 9 years, according to the case of Hii Siew Cheng.  He asked the court to adopt a lower starting point in view of the defendant’s youth, the fact that he wants to reform himself, and having a supportive family.

21.Four mitigation letters were submitted, respectively written by the defendant’s elder sister, father, aunt and the defendant himself.  Basically, the contents were that the defendant is remorseful for what he had done, that he has decided to reform himself, and that the family will help him achieve that end.

Sentence and the reasons for sentence

22.Trafficking in a dangerous drug is a serious offence.  The defendant’s young age and clear record are not valid mitigating factors.

23.The only mitigating factor in this case is the defendant’s pleas of guilty, showing a degree of remorse on his part.

24.I will give him the full discount, despite the fact that he had initially resisted the police’s effort to uncover the offence subject of the second charge.

25.The total amount of ketamine in this case is 142.26 grammes.

26.According to the sentencing tariff laid down in the case of Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, a starting point of between 6 and 9 years is appropriate for trafficking in between 50 and 300 grammes of ketamine.

27.I see no reason for departing from the tariff. 

28.Having considered the contents of the mitigation overall, I am willing to adopt a slightly lower global starting point of 6½ years’ imprisonment in respect of the two charges.

29.The defendant pleaded guilty and is therefore entitled to a discount of one-third.

30.The global sentence in his case is 4 years 4 months’ imprisonment.

31.Absent the relatively recent Court of Appeal authority of HKSAR v Wan Lau Mei, CACC 389/2013, submitted by Miss Chan representing the prosecution, to whom I am grateful, I would have imposed two different sentences to reflect the vastly different amounts of drug involved in the two charges, before making them partly consecutive to each other to arrive at the overall sentence of 4 years 4 months.

32.However, since this court is bound by Wan Lau Mei, I have to - not without some hesitation, I must say - impose identical sentences of 4 years 4 months’ imprisonment on the two charges and make them wholly concurrent with each other.  This I now do.

33.Defendant, please stand.

34.The defendant has to go to prison in respect of Charge 1 for a term of 4 years 4 months, and in respect of Charge 2 also for a term of 4 years 4 months.

35.The two sentences of imprisonment are to be served concurrently with each other.