HKSAR v. Fung Ming Hin

DCCC 1030/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1030 OF 2014

____________

REASONS FOR SENTENCE

1.The defendant pleaded guilty to a charge of "Possession of dangerous drugs". The dangerous drug involved is ketamine.

Summary of Facts

2.About 2:50 pm on 18 September 2014, PC 10059 (PW1) and his colleagues stopped the defendant for enquiry outside the Ngau Tau Kok Post Office situated at Ground Floor, On Key Court Shopping Centre.

3.Upon search, PW1 found a resealable transparent plastic bag in the defendant's left jeans pocket.  The plastic bag contained :-

(i) 32 plastic bags which contained a total of 37.10 grammes of a solid containing 23.30 grammes of ketamine; and

(ii) a $50 banknote folded into a packet which contained 0.36 gramme of a powder containing 0.22 gramme of ketamine.

4.Under caution, the defendant said he bought the ketamine for self-consumption and to relieve pressure. 

5.In his video recorded interview, the defendant admitted that he has been a ketamine abuser since Primary 6.  He took ketamine 4 to 5 times a week, inhaling about 14 grammes each intake.  He then refused to answer any questions about the drugs seized.

Mitigation & Sentence

6.The defendant is now 23 and has 5 conviction records, which include 3 "simple possession" offences and 1 "trafficking" offence.  His last conviction is dated July 2014; he was fined $3,000 for "simple possession".

7.According to the DATC Report, the defendant comes from a broken family.  His parents got divorced in 1997 when he was only 6.  The defendant was brought up by his mother, who later remarried.  He often stayed away from home to avoid family supervision.  He disclosed that he began taking ketamine for fun at the age of 13.  In mitigation, defence counsel Mr. CHENG submitted that the defendant now understands the consequences of drug abuse.  He is determined to stay away from drugs.

8.A total of 23.52 grammes of ketamine are involved in this case.  Based on the quantity of narcotics and the defendant's background, an immediate custodial sentence is inevitable. Since the defendant has been remanded in jail custody for almost 6 months, it follows that he is no longer a drug dependant as revealed in his DATC Report.

9.When determining the proper starting point, I have borne in mind the 3-step approach laid down in HKSAR v WAN Sheung Sum [2000] 1 HKLRD 405.  First, the defendant being a repeated offender of "simple possession", for 23.52 grammes of ketamine, I adopt a starting point of 15 months' imprisonment.  Second, the defendant has 1 previous conviction of "Trafficking".  Furthermore, the quantity and packaging of the ketamine (23.30 grammes of which were packaged in 32 plastic bags) must be a latent risk factor.  I consider the latent risk high in this case.  I will add 9 months to reflect it.  In other words, the starting point shall be 24 months.

10.The defendant has pleaded guilty to the charge.  I will give him the usual one-third discount, reducing the sentence to 16 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.  The sentence I impose is 16 months' imprisonment.