HKSAR v. FUNG WAI HING

HCCC 12/2018

[2018] HKCFI 1400

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 12 OF 2018

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

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COURT:

The defendant, a 58 year old male, was committed for sentence from Eastern Magistracy on 2 January of this year on two charges of trafficking in dangerous drugs; namely 20.1 grammes of heroin being the 1st charge, and a further 107.23 grammes of heroin being the 2nd charge.

The facts of the case were that the defendant was intercepted and searched by police as he came out from his room in a building in Mong Kok. The 20.1 grammes of heroin, the subject of the 1st charge, was found in his trouser pocket contained in a plastic bag. His room was then searched and the drugs the subject of the 2nd charge were found in six plastic bags on a table top along with an electric scale, plastic tape, and a pair of scissors.

When interviewed by police the defendant said that the drugs the subject of the 1st charge, and one of the six packets found on the table in his room the subject of the 2nd charge, were for his own consumption and that he consumed about 0.4 to 0.5 grammes of heroin per day.

In respect of both charged offences, Ms Tjia relies upon the defendant’s early plea of guilty and his possession of the drugs, or part of the drugs, in each charge for the purpose of self-consumption.

I turn to the 1st charge. Given the quantity of drug involved in the offence the subject of the 1st charge, I take a starting point of sentence of 6 years’ imprisonment. The defendant’s early plea of guilty allows him a full one-third discount. Insofar as the 1st charge is concerned, even having regard to the fact that the defendant was a heroin addict of long standing as set out hereunder, I am sure that the 20.1 grammes of drug in the defendant’s pocket was not for his own consumption; he was leaving his room with those drugs when arrested. They had a street value of nearly HK$20,000 and he was unable to give any coherent explanation as to where he intended to take them and why. I am sure he possessed them for the purpose of trafficking.

Accordingly, no further discount can be allowed the defendant so far as the 1st charge is concerned, and on that basis, there being no other mitigation available to the defendant, the starting point of sentence is reduced to reflect only his early plea, and that arrives at a sentence of 4 years’ imprisonment.

I turn to the 2nd charge. Ms Tjia for the defendant submits that part of the quantity of drug in the offence was for the defendant’s own consumption. She points to one of the six bags on the table apparently having been accessed by the defendant. She points out that the defendant was convicted of dangerous drugs offences as early as 1992 and indeed, in 1995, and again in 1998 was sentenced to detention in a drug addiction treatment centre. Following that, the defendant committed several other and more serious drug offences.

I am sure that the defendant is a long-term addict and that his early statement on the day of his arrest and the video-recorded interview to the effect that he had consumed heroin for about 30 years is true. In my view, and in my experience, the defendant’s assertion in that interview that he consumed about half a gramme of heroin daily is likely true.

The drugs the subject of Charge 2 were found in the defendant’s room and were contained in six packets which were nearby to drug weighing and packaging paraphernalia. As I have said, the defendant’s case, as set out in his video-recorded interview was that one of those six packets, namely the one showing signs of previous access in photograph 11 of the photographic bundle, was for his self-consumption but that he would sell it if someone wished to purchase it.

Accordingly, while I’m prepared to allow the defendant some credit for self-consumption in respect of the second charged offence, it will be at the lowest level as a result of the very large and intended risk of that packet of dangerous drugs the defendant intended to access at least in part for his own consumption, falling, in significant measure, into the possession of others.

So far as the offence the subject of Charge 2 is concerned, I take a starting point of sentence of 9 years’ imprisonment; that is reduced by one-third as a reflection of the defendant’s early plea of guilty to an initial sentence of 6 years’ imprisonment, and allowing a further discount of 10 per cent and allowing the defendant the benefit of the small fractions, the final sentence is reduced to one of 5 years, 2 months’ imprisonment.

Given the total quantity of dangerous drugs in the two charges, and considering the appropriate totality of sentence, I order that only 1 year and 8 months of the sentence in respect of the 2nd charge be served consecutively to the sentence imposed in respect of the 1st charge, and the balance of sentences be served concurrently.

That is a totality of sentence of 5 years, 8 months’ imprisonment.

I might add that the totality of sentence is calculated by way of considering, in broad terms, what the appropriate sentence would be in the circumstances of this case in terms of the totality of drugs involved in the two charges, allowing for the defendant’s pleas and the degree of self-consumption involved.