HKSAR v. FONG TSANG LEUNG

HCCC 384/2019

[2020] HKCFI 1086

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 384 OF 2019

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: The Charge and Plea

The defendant pleaded guilty to one count of trafficking in a dangerous drug which concerned 59.8 grammes of a crystalline solid containing 58.8 grammes of methamphetamine hydrochloride commonly known as ‘Ice’ in the court below and admitted the facts.

The defendant confirmed his guilty plea and admission of the Summary of Facts dated 8 November 2019 before me. I convicted the defendant on his own plea and admission.

The Facts

The Summary of Facts admitted by the defendant reveals that at about 7.24 pm on 15 September 2018, the police were conducting anti-crime patrol during which time they spotted the defendant looking around and behaving suspiciously outside Sau King House, Sau Mau Ping Estate, 101 Sau Ming Road, Sau Mau Ping, Kowloon. The officers noticed that the defendant walked away in a fast pace upon noticing their presence and they therefore approached the defendant and intercepted him for investigation. A body search was thereafter performed on the defendant and the following items were found concealed inside the underpants of the defendant:

(a)  a plastic bag containing six transparent resealable plastic bags containing 46.5 grammes of a crystalline solid containing 45.7 grammes of methamphetamine hydrochloride, DD-1; and

(b)  another transparent resealable plastic bag containing 13.3 grammes of a crystalline solid containing 13.1 grammes of methamphetamine hydrochloride, DD-2.

The defendant was then arrested and cautioned. Under caution, the defendant stated that DD-1 and DD-2 were for his own consumption.

In the subsequent cautioned interview, the defendant stated, inter alia, the following:

(a)  DD-1 and DD-2 were for his own consumption and could last him for about two months; and

(b)  He used about $15,000 to purchase DD-1 and DD-2 from someone.

A subsequent house search was conducted at the defendant’s residence. Nothing illegal or suspicious was found. At the time of the arrest, the defendant was in possession of $15,740 and two mobile phones containing a total of three SIM cards.

The estimated street value of DD-1 and DD-2 was about $27,988.80.

The defendant now admits and accepts that at the material time he was unlawfully trafficking in DD-1 and DD-2.

The Background of the Defendant

The defendant was locally born and is now 27 years old. He received education up to Form 4 level. He is single and he resided with his parents and siblings in Tseung Kwan O. He had been convicted of possession of dangerous drugs on three occasions, that is, 2011, 2013 and 2016. In 2011, he was convicted of one count of trafficking in a dangerous drug and was sentenced to 3 years’ imprisonment. He also had one conviction for assaulting a police officer in 2013. The defendant was last discharged from prison in October 2016.

Mitigation

Ms Lai tells me in mitigation that the defendant started to abuse drugs since he was 18 under the influence of bad peers. He had abused ketamine, cocaine and ‘Ice’. At the time of the offence, the defendant mostly took ‘Ice’. Ms Lai tells me in mitigation that the defendant sustained serious injuries in his right finger in an industrial accident. In early 2018, he started to consume cocaine and ‘Ice’ at the same time as analgesics. Of the two drugs he took, ‘Ice’ was more effective in terms of its analgesic effect and less expensive than cocaine.

Ms Lai says the defendant was employed as a plumber from March to September 2018, earning $25,000 a month. Financially he was stable. He had about $30,000 before he purchased the drugs in question for $15,000. Ms Lai submits that the defendant intended to consume one-third of the ‘Ice’ in question. Ms Lai submits that given the quantity of ‘Ice’ in question, that is 58.8 grammes, applying the tariffs in HKSAR v Tam Yi Chun, a starting point of 10 years and 3 months is appropriate.

Ms Lai urges me to accept the mitigation that the defendant intended to consume one-third of the ‘Ice’ seized, taking into consideration:

(1)  The time and location where the defendant was stopped and searched. There were only seven plastic bags of drugs involved.

(2)  The defendant had just brought the ‘Ice’ from the seller in the street and he was on his way home.

(3)  The defendant was an addict or habitual user.

(4)  The defendant said at the time of his arrest under caution that he had the drugs for his own consumption. In a subsequent cautioned interview, the defendant stated that the drugs were for his own consumption.

(5)  The defendant was gainfully employed at the time. Such is substantiated by the salary proof submitted.

(6)  The defendant’s criminal record in relation to previous drug offences, that is, he had three convictions for possession of dangerous drugs and one for trafficking in dangerous drug.

Ms Lai urges me to accept that a significant proportion of the drugs were for the defendant’s own consumption and I should allow a discount of between 10 per cent and 25 per cent of the basic starting point.

Consideration

This case concerned 58.8 grammes of ‘Ice’. Applying the tariffs in Tam Yi Chun, a starting point of 10 years and 3 months, that is 127 months’ imprisonment, is appropriate.

The defendant is entitled to a full one-third reduction for his timely guilty plea which would bring the starting point down to 8 years and 2 months.

For Ms Lai’s submissions that the defendant should be given 10 to 25 per cent on the ground that one-third of the drugs would be for the defendant’s own consumption, I have considered all the matters urged on the defendant’s behalf. I have taken into consideration matters that are in his favour, for example, the fact that the defendant has three previous convictions for possession of dangerous drugs and he had been sentenced to DATC once in 2011, the way the dangerous drugs were wrapped and the number of packets, the financial means of the defendant and his ability to pay for his drugs otherwise than by trafficking in them.

On the other hand, there are matters which are against the defendant’s claim that around one-third of the ‘Ice’ was for his own consumption. Firstly, Ms Lai accepts that the urine test that the defendant took after his remand at Lai Chi Kok Reception Centre yielded a negative result in ‘Ice’, though the urine sample was positive in cocaine. The test result contradicts the defendant’s claim that he last took ‘Ice’ on 13 September 2018.

Ms Lai submits that at the time of the defendant’s arrest and in the subsequent interview, the defendant had already stated that the drugs were for his own consumption.

In my judgment, explanations that the defendant told the police upon arrest and in the cautioned interview were lies, given that he now admitted and accepted that he trafficked in the ‘Ice’ at the time of his arrest and pleaded to the charge.

I reject the defendant’s claim that he bought the ‘Ice’ in question for $15,000 when the estimated street value of the ‘Ice’ in question was about $47,988.

When asked why there was no paraphernalia for smoking ‘Ice’ found as a result of the house search, Ms Lai explained that the defendant would dispose of the smoking device every time after he had consumed ‘Ice’. I find the explanation implausible. If the defendant had to store the dangerous drugs for his consumption at his residence, he had no reason or need at all to dispose of the smoking device after use.

For the reasons given, I reject the defendant’s claim that one-third of the ‘Ice’ found on him was for his own consumption. I reject also the defendant’s claim that he took ‘Ice’ as analgesics. I am satisfied that the defendant trafficked in all of the ‘Ice’ seized.

I have considered the mitigating letters written by the defendant and his elder brother. Apart from the guilty plea, there are no other mitigating factors that can be said in the defendant’s favour.

For the reasons given, I sentence the defendant to 8 years and 2 months’ imprisonment. That is 98 months.

(Discussion re calculation for sentence)

Yes. I am told I have made some mathematic mistakes but the starting point, the basic starting point of 10 years and 3 months is correct. So 10 years and 3 months is 123 months. With the one-third reduction, the final sentence should be 82 months, 82 months. Starting point is 8 years -- sorry, starting point: 10 years and 3 months. That is 123 months. One-third reduction bring it down to 82 months. The sentence that the defendant shall receive is 82 months’ imprisonment.