HKSAR v. Cheung Kin Fun

DCCC 260/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 260 OF 2015

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REASONS FOR SENTENCE

1.The defendant faces 1 charge of "Possession of an apparatus fit and intended for the smoking of a dangerous drug" (Charge 1) and 1 charge of "Trafficking in dangerous drugs" (Charge 2).

2.He pleaded guilty to Charge 1.  In respect of Charge 2, he pleaded guilty to "Possession", which was accepted by the prosecution.

Summary of Facts

Charge 1

3.About 5:20 pm on 29 January 2015, DPC 5397 (PW2) saw the defendant sitting at a corner of the staircase between the 2^nd and 3^rd Floors of Block 9, Pak Tin Estate in Shek Kip Mei.  He was holding a plastic "Yakult" bottle in his left hand; and in his right hand, a half piece of straw, 2 bamboo sticks, a lighter and a plastic bag of white powder.

4.PW2 arrested the defendant.  Under caution, he admitted that the stuff was for his own consumption and asked for a chance. In his subsequent interview, the defendant explained that "the stuff" meant cocaine.  He would use the "Yakult" bottle to smoke cocaine fumes.

5.The "Yakult" bottle was connected to a plastic straw by a piece of bubble gum, with signs of burning on the cap. The plastic straw was found to contain traces of a powder containing cocaine; and the bottle, 34 millilitres of a liquid containing traces of methylecgonine (a derivative of ecgonine).  The plastic bag seized from the defendant contained 0.01 gramme of a powder containing cocaine.

6.The defendant was released on police bail.

Charge 2

7.About 4:40 pm on 11 February 2015, DPC 1652 (PW1) saw the defendant at the staircase between the 4^th and 5^th Floors of Block 9, Pak Tin Estate and requested him to stop.  The defendant was holding a cigarette box in his right hand; he asked PW1 to let him go as he could not be arrested again.  He continued to walk down the stairs.  PW1 pressed him down on the floor, but he kept struggling.

8.At that time, PW2 and WDPC 9139 (PW3) arrived at the staircase.  PW2 seized the cigarette box from the defendant's right hand.  PW3 checked the cigarette box.  It contained 2 plastic bags:  1 contained 5 clear re-sealable plastic bags; and the other, 6 similar plastic bags.  The 5 plastic bags were found to contain a total of 1.20 grammes of a solid containing 0.83 gramme of cocaine; whereas the 6 plastic bags contained a total of 4.92 grammes of a powder containg 2.11 grammes of ketamine.

9.Under caution, the defendant remained silent.  He also remained silent in his video-recorded interview.

Mitigation & Sentence

10.The defendant is now 23 and has 3 conviction records, none of which are drug-related.  He has been sentenced to a Rehabilitation Centre and a Training Centre, but has never been to prison before.

11.According to the DATC Report, the defendant is not a drug dependant.  The report also revealed that the defendant began to sniff ketamine in late 2007.  Efforts were made to help him stay drug-free (such as Probation and voluntary residential drug treatment), but none was successful. The defendant did not cut off his link with the undesirable peers.  As a result, he committed the present offences.

12.In mitigation, defence counsel Mr. FUNG submitted that the defendant is still relatively young.  He has no conviction of drug-related offences.  The quantities of the drugs involved are small.  The defendant is remorseful and has determined to turn a new leaf in his life.  A letter written by the defendant was placed before me; its contents are duly noted.

13.Since the defendant has been remanded in jail custody for over 4 months, it is somewhat expected that he is not a drug dependant.  Although a DATC Order is not necessary, an immediate custodial sentence is inevitable in the present case.

14.For Charge 1, the usual starting point is 3 months' imprisonment after plea.  I have no reason not to follow it.  Hence, I adopt a starting point of 4.5 months' imprisonment.  A one-third discount is given for the guilty plea, reducing the sentence to 3 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 3 months' imprisonment.

15.For Charge 2, 0.83 gramme of cocaine (packaged in 5 plastic bags) and 2.11 grammes of ketamine (packaged in 6 plastic bags) were involved.  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 fresh offender of "simple possession", for the quantities and nature of the drugs involved, I adopt a starting point of 10 months' imprisonment.  Second, the packaging of the drugs (they were contained in a total of 11 plastic bags) must be a latent risk factor.  I accept that the risk is low.  I will add 2 months to reflect it.  In other words, the starting point shall be 12 months.  With the guilty plea, the sentence is reduced to 8 months.  I sentence the defendant to 8 months' imprisonment.

16.Charges 1 and 2 took place 2 weeks apart.  Both charges are separate and distinct.  The defendant committed Charge 2 whilst on police bail for Charge 1. Notwithstanding the totality principle, I order the sentence in Charge 2 to run consecutive to Charge 1.  Thus, the total prison term for both charges is 11 months.