HKSAR v. FU MAN KIT

HCCC 37/2018

[2018] HKCFI 1935

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 37 OF 2018

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

You have faced one count of trafficking in dangerous drugs contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, which was committed for trial on 29 January 2018. That was the first opportunity to indicate that you would enter a plea either to trafficking in dangerous drugs or to possession, but you first indicated your willingness to plead to possession on 3 July 2018. But even that does not show a complete picture of these proceedings and the cost to the public purse which is estimated to be in the order of $310,000 for your defence alone.

You were arrested for this offence on 30 November 2016. Mr Kelly represented you in trial and for sentence. But prior to that, Ms Lam appeared. I remember her appearance and I am informed that before her there were two other counsel, Mr Wong and Mr Ng, and two other sets of instructing solicitors all provided by the Director of Legal Aid at public expense and paid for by the Hong Kong taxpayer.

Perhaps, for me, of even more significance is at a detailed case management hearing and in trial for two days, your defence was to be that the drugs were planted and by reason of your plea now, and as explained in open court prior to your entering your plea, you have indicated that those drugs were in your possession all along and that the allegations that you made against the police force and individual police officers were wholly untrue.

I take a very dim view of criminals such as yourself getting on to a bandwagon against the police force. They do a very good job in protecting citizens of this country and all of you seem to think that you can cast aspersions against them. There may be some members of the police force who we are less proud of, but I take a dim view of people who do that when all along they know they are guilty of this and it may be that you are very lucky that somebody took a plea to possession.

You are 47 years of age and single. At the time of this offending, you were employed, you say, as a part-time delivery worker and I am told that you had traces of’Ice’ in your system after arrest. I know from the papers that dangerous drugs were found at a flat to which you had access and that your girlfriend was prosecuted for possession of those drugs to which she pleaded guilty. So, although some trace of amphetamine was found in your system upon arrest, at no time has it been suggested that you were or are a drug addict and, indeed, that is made out by what you said in your antecedent statement when you say you are not a user of drugs.

But then we have got a DATC statement which says, "Oh, no, I was taking drugs, but it was all my girlfriend's fault," and given the background to this offending, I do not believe either of them because it seems to me that you lie as part of your second nature. What I can take from that is if the plea of possession was offered and accepted, it must have been done on the basis now that you say the drugs were for your own consumption.

Mr Poon, on the last occasion, Ms Chit today, has asked the court to consider the case of HKSAR v Wan Sheung Sum, CACC 438/1999. That was a matter which involved a charge of trafficking in dangerous drugs in heroin hydrochloride.

The court found that someone who was a bona fide user of heroin or’Ice’ faced a starting point after trial for simple possession of between 1 year and 18 months, but that was subject to enhancement for the latent risk factor of further distribution of those drugs and, obviously, that would be fact-specific to each case and, therefore, any adjustment for mitigation and also any appropriate discount for plea.

Mr Kelly has provided the court with HKSAR v Mok Cho Tik, CACC 165/2000, which suggested a similar starting point after trial and in that case, the Court of Appeal adopted a starting point of 18 months for 15.725 grammes of drugs.

There is also brought to my attention, HKSAR v Lai Kam Sang, CACC 578/1998. Pleading guilty to possession of 26.61 grammes of ’Ice’, the Court of Appeal felt a starting point of 18 months was appropriate and, in that case, they gave an enhancement of 12 months, 50 per cent, for the latest possession on the specific facts of that case, although, the court commented obiter, that an enhancement of as much as 100 per cent upon a starting point would not necessarily be criticised. Yet again, it depends upon the facts before the court.

You were 45 years old at the time that you committed this offence. You had a previous conviction for trafficking in dangerous drugs for which you originally received 5 years and 8 months’ imprisonment, but I am told that that was reduced by the Court of Appeal to 3 years. I do not know if that was after trial, but from the original sentence, it would appear to be the case.

You said in your antecedent statement that at the time of the offence you were a delivery worker, as I have mentioned, earning only $400 a day, and you have not provided any other income suggestion or any other form of employment. You say you were not in receipt of CSSA. How were you living?

You said you have been twice divorced and that you currently lived with your brother and sister-in-law. So, if that was the case, I am not particularly satisfied it was, but if it was the case, you were a long way from home that night. A search of that address found nothing. But, of course, we know already that a search of the girlfriend's address did find other drugs which you, of course, say were all hers and she pleaded guilty to possession of that. All of that makes me wonder how you were able to afford to consume ‘Ice’ at all and where the money came from for it.

It is interesting also, along with all of the other lies that you have consistently told, that despite having a key to the girlfriend's flat and the flat being littered with drugs, you said you knew nothing about it and yet in the DATC report, she is the person you blame for starting you on drugs. Next time you are caught, because no doubt there will be a next time, Mr Fu, maybe you had better get your story consistent because all of these lies trip you up at the end of the day.

It is clear you knew she was an abuser of drugs. It is clear at least that you were using drugs casually. But you were in possession of 13.2 grammes of ‘Ice’ in public. Those are sufficient hits if you are a casual user, as you suggest you are, for a month. Drug addicts, of course, take far, far more and far more risks.

You had no money on you at the time, very little money on you at the time when you were with your girlfriend that evening in the taxi and so I take the view against the background of all of those facts that there was considerable further potential for you to hand over whatever drugs you had on you for other social or commercial gain, not least the possibility that you would have supplied it to your girlfriend.

For possession of 13.2 grammes of ice, I take a starting point of 15 months, but I intend to enhance that starting point by 1 year, that is 80 per cent, for what I consider to be a high possibility, in all the circumstances of this case, of further distribution. I also intend to enhance that by 3 months for your previous offending, which makes a total of 30 months.

You offered a plea to possession on 3 July, which was long after committal, as Mr Kelly fairly points out, and have had four defence teams. I am not being told why the plea was not accepted by the prosecution at that stage because I cannot see that anything has particularly changed. It may be because it had been clear all along that your defence was one of planting and minds were somewhat diverted as that defence is quite clearly inconsistent with your plea.

Should I penalise you for the public expense you have incurred running a case which was entirely fictitious from the start? Or do I note that the plea is not a bona fide one and is a tactical response to time served and a risk of an adverse verdict on trafficking in dangerous drugs after two days of trial and, therefore, give you little or no credit for your plea as it is disingenuous and not a true plea and shows absolutely no remorse? Mr Kelly suggests that if it is appropriate for me to take either course, the latter is preferred to the former.

In any event, the plea was not accepted until day 2 of the trial. According to Ngo Van Nam, CACC 418/2017, a plea tendered at such a late stage attracts a discount of just 20 per cent, but the actual discount is still within my discretion and I have canvassed my concerns above with you about that discount. However, you were arrested on 30 November 2016, you have been remanded for three days short of 20 months. You will attract, in any event, a one-third discount for your good behaviour. I am sure you will be well behaved in prison and I will presume you are entitled to it and, therefore, even if you were to receive only a 20 per cent discount, you will now have served 4 months greater than you should have served and you will, therefore, I assume, subject to administrative matters, be released immediately.

I see no benefit at all, therefore, in reducing that 20 per cent discount marginally to mark what I now can assume everybody knows are my views about this matter. I do not think I would be justified in taking that course.

So the sentence I pass upon you is one of 2 years' imprisonment.