HKSAR v. FUNG WING LAM CORRENR

HCCC 223/2022

[2023] HKCFI 1909

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 223 OF 2022

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

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COURT: Defendant, on 19 December 2022, you pleaded guilty to a charge of conspiracy to traffic in dangerous drugs before a magistrate sitting at the Eastern Magistracy. You also admitted a Summary of Facts. As result of your plea of guilty, you have been committed here to the Court of First Instance for sentence. Today, at the sentence hearing, the prosecution had amended the Summary of Facts. Those full amended Summary of Facts which included the facts you had admitted before the magistrate were read to you again and you admitted those amended Summary of Facts.

You have admitted that between a day unknown in July 2020 and 30th day of September 2020, both dates inclusive, in Hong Kong, you conspired together with other persons unknown to unlawfully traffic in dangerous drugs, namely heroin hydrochloride and ketamine.

The amended Summary of Facts of today’s date, 29 June 2023, is a very detailed amended Summary of Facts. I shall give a brief summary of what is contained in there.

On 16 and 30 September 2020, customs officers were present for an anti-narcotics operation at a building known as Park Fook Industrial Building, No. 615-617 Tai Nan West Street, Cheung Sha Wan, Kowloon, Hong Kong. I shall refer to that as the building. They were also there conducting their operation at Flat A, 4^th Floor of that building.

At about 0455 hours on 30 September 2020, customs officers saw you leave Room A35, intercepted you at the corridor outside Room A35 for a body search. Inside your cross-shoulder bag was the key which you confirmed was to access Room A35. Customs officers then entered Room A35 using the key found in your possession. At that time, there was no one else inside the room.

The officers executed a search warrant and the following items were found. On the table:

(a)  A black plastic tray containing durian pulp;

(b)  a black plastic tray containing durian seeds;

(c)  a plastic bag;

(d)  a knife;

(e)  16 transparent resealable plastic bags, consisting of plastic wrappings, containing a total of 64.4 grammes of a mixture containing 54.6 grammes of heroin hydrochloride;

(f)  a pair of scissors;

(g)  a plastic film sealer;

(h)  a tape dispenser;

(i)  some resealable plastic bags.

On the floor:

(j)  A trolley;

(k)  20 white foam boxes containing trays of durian pulp.

On the shelves:

(l)  Three boxes of resealable plastic bags;

(m)  two bundles of resealable plastic bags;

(n)  tenancy related documents;

(o)  two electronic scales;

(p)  a knife;

(q)  a box of gloves;

(r)  two recycle bags.

You were arrested and under caution, you admitted the bags of mixture on the table contained dangerous drugs.

Subsequent examination on the box of durian pulp and its seeds, that is the 20 boxes found in Room A35, showed that the pulp was used to wrap around the durian seeds of which the original core of those subject seeds had been emptied and further stuffed with packets consisting of plastic wrappings containing dangerous drugs inside.

Upon subsequent dangerous drugs examination, these 20 boxes were found to contain 2,421 packets containing a total of 10,075.1 grammes of a mixture containing 8,449.9 grammes of heroin hydrochloride and three plastic bags containing a total of 1.89 grammes of a solid containing 1.5 grammes of ketamine.

The total therefore heroin hydrochloride found and seized in Room A35 were a total of 2,437 packets containing 10,139.5 grammes of a mixture containing a total of 8,504.5 grammes of heroin hydrochloride.

In a subsequent video-recorded interview, defendant, you admitted that your job was to open the foam boxes and to take a tray of durian pulp out to see if any dangerous drugs was concealed in the seeds. Not all the trays of durian had concealed dangerous drugs. You would wait for calls to see how much drugs were needed and you would extract the required amount out. The packaging paraphernalia found on the table and on the shelves were to weigh and package the drugs after extracting them.

You said that normally, your reward was around $2,000 to $5,000 paid by cash or cash deposit. Since this was the second time you had worked for a person called Michael, you were promised a reward of $30,000 this time for opening all the foam boxes and taking out all the drugs.

It was not you who rented Room A35 but you were given the key by someone called Milk Boy. You were originally responsible for paying the monthly rent for $4,200 but the money came from a person called Michael. Afterwards, Michael made the deposits and sent you the photos of the deposit receipts so you could send it to the landlord.

You informed customs that in July 2020, you were acquainted with a person called Michael who introduced you to a friend known as Milk Boy as you were unemployed and in need of money. Michael told you if you accepted the job from him, you would need to work for a period of a few months. So this is how you became involved in your trafficking in dangerous drugs.

The customs officers seized your mobile phones which were two mobile phones of Sharp manufacturer and iPhone manufacturer and they observed in your phone calls with Michael and Milk Boy and other persons related to this case. Also, they were able to observe WhatsApp messages.

In the iPhone, there were some 221 photos of suspected dangerous drugs which included numerous packets of white powder, crystalline and herbal substances, some being weighed on scales and some held by different persons or laid on a table. And these photos were taken between 17 July and 30 September 2020.

In September 2020, the estimated street value for the seized heroin hydrochloride was $15,219,389.50 and for the ketamine 927.99.

Customs officer had also viewed the CCTV footages of the building and the corridor near Flat A and had observed from the footages that you had repeatedly entered Flat A between 16 to 19 September 2020 and 29 to 30 September.

Custom officers had also known that a shipment of 28 white foam boxes had been shipped from Malaysia to Hong Kong and it claimed to be durian goods from Malaysia. These 28 foam boxes were collected at Hong Kong International Airport on 29 September 2020 and were first delivered to an address at Tai Wai. Eventually, those boxes were delivered to the building at about 7 pm.

It was seen from the video footage that when those 28 foam boxes were delivered to the building, you and a male, male A, brought the boxes from the loading area of the building’s ground floor to Room 35 of Flat A. Eventually, all the boxes were moved into Flat A either by male A or a male C.

Shortly after midnight on 30 September, a male D went to Flat A and he was with you in that room until you both left at about 3.46 am.

At 10.58 pm on 29 September, this male C removed eight white foam boxes on a trolley from Flat A. You were then seen to return to Room A at about 11.15 with an empty trolley.

In your record of interview at paragraph 14, under the heading “White Foam Boxes and the Drugs Concealed in Durian Seeds” under D and E, you admitted that this male D had removed about 700 grammes of drugs. And therefore for the purposes of the amount of drugs in those 28 foam boxes that were delivered to Room A, it was an admitted fact that the 700-odd grammes with a purity of 81.76 per cent estimated purity was 572.32 grammes. Therefore the total amount of heroin hydrochloride delivered in those 28 foam boxes was 9,076.82 grammes of heroin hydrochloride.

Although this conspiracy is dated in a date unknown in July to 30 September, there is no evidence here as to the amount of drugs, if any, before the delivery of these 28 foam boxes.

As stated at paragraph 17(h), the 221 photos in your iPhone are suspected drugs. I therefore am unable to arrive at a particular amount of drugs and for the purpose of this sentencing, I shall take the amount of drugs to which you conspired to traffic to be that of 9,076.82 grammes.

Defendant, Mr Franco Kuan counsel, leading Mr Leon Chan Cheuk-hin on a pro bono basis, has written full mitigation on your behalf. Mr Kuan has ably set out the legal principles and also the guidelines cases regarding trafficking of heroin hydrochloride and ketamine.

Defendant you are now 22 years of age and you have a clear record. Prior to your arrest, you lived with your parents and your elder brother in public housing. I am informed that up until about 2014 or 2015, your father was the sole breadwinner of the family. However, since then your father suffered a stroke and your family had been surviving on CSSA.

In 2020, before your arrest, you had just completed a one-year foundation diploma course on hospitality. However, just prior to this offence, you had been facing financial predicament and had difficulty paying for your course fees. For this reason, Mr Kuan explains you committed this offence as you wanted to pay for your school fees and the fact that your father had suffered a stroke and the family was in financial difficulties.

Mr Kuan accepts this is not a mitigating factor but this explains why a person at such a young age and a clear record is committing this very serious offence.

I accept Mr Kuan’s submissions that although these drugs were imported from Malaysia, there is no evidence in this case that you knew that the drugs were imported from abroad therefore in that instance, this is not an aggravating factor.

Your role in this offence was really a front-line worker. You were employed to take the drugs out of the seeds of the durian wrapped in durian pulp. Clearly you were instructed to do so by the likes of someone called Michael and had other males assisting you either in taking out the drugs and/or taking the drugs away to deliver to others or supply to others. I can see no other aggravating feature in this case.

Defendant, there were two types of drugs involved in this case. That was heroin hydrochloride and ketamine. The amount of ketamine in this case is a very small amount of 1.54 grammes of ketamine.

The sentencing tariff in relation to the trafficking of ketamine is found in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD at page 1. Between 1 to 10 grammes, the sentence is that of 2 to 4 years. Had you been sentenced just for trafficking for 1.5 grammes, I would have taken a term of 2 years’ imprisonment.

The sentencing tariff in relation to the trafficking of heroin is found in the cases of R v Lau Tak Ming [1990] 2 HKLR 370 and HKSAR v Abdallah [2009] 2 HKLRD 437. In view of the large quantity of methamphetamine hydrochloride, Abdallah is the appropriate case.

In this case, defendant, there was 9,076.82 grammes of heroin hydrochloride and that falls within the bracket of 4,000 grammes to 15,000 grammes. If you had been convicted for the offence after trial, this would attract a sentence of between 26 to 30 years’ imprisonment.

For that amount of heroin hydrochloride, had you been convicted after trial, that would attract a sentence of 27 years and 9 months’ imprisonment.

You were trafficking in two types of drugs. I will take a combined approach when sentencing you. The more serious drug is that of heroin hydrochloride. I would therefore convert the ketamine to heroin hydrochloride. 1.54 grammes of ketamine equates to approximately 1 gramme of heroin hydrochloride. Therefore the total amount of drugs to which I can sentence you on is 9,077.82 grammes of heroin hydrochloride. That will remain at the same starting point of 27 years and 9 months’ imprisonment.

The strongest mitigating factor in this case, defendant, is your plea of guilty at the earliest opportunity and for that you are entitled to the full one-third discount to which I shall apply.

In the circumstances, defendant, the term of 27 years and 9 months shall be reduced to one of 18 years and 6 months’ imprisonment.