HKSAR v. FONG YAN FUNG

HCCC 158/2020

[2021] HKCFI 49

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 158 OF 2020

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

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COURT: The defendant pleaded guilty before a magistrate to two charges of trafficking in dangerous drug and one charge of possession of dangerous drug. She was committed to the Court of First Instance for sentence. In sentencing, I have considered the whole circumstances of the case, including its nature and facts, in particular the type and quantity of the dangerous drugs involved, background of the defendant and mitigation put forward on her behalf.

The facts of the case may be summarised as follows. When the defendant had come out from a flat in a building, she was intercepted at the lift lobby on the same floor. She put up a struggle and was subdued by the police and then taken back to the flat. Inside the plastic bag she was carrying, there was a plastic bag containing 55 plastic bags containing a total of 10 grammes of a solid containing 8.39 grammes of cocaine. Under caution, the defendant said she was going to share the ‘coke’ with others.

A search of the flat discovered the following:

(1) A total of 32.97 grammes of a solid containing 27.88 grammes of cocaine contained in 167 plastic bags. Two of these bags with narcotic content of 2.34 grammes were found in a cosmetic bag found on a table and the rest of the cocaine was found in the toilet;

(2) one plastic bag containing 3.18 grammes of cannabis in herbal form in the cosmetic bag;

(3) two plastic bags containing 1.3 grammes of a crystalline solid containing 1.25 grammes of methamphetamine hydrochloride, commonly known as ‘Ice’, also in the cosmetic bag;

(4) a lighter, a digital scale and numerous resealable plastic bags.

Under caution, the defendant said the ‘coke’ would be shared with others and the cannabis was for trafficking. She admitted the ‘Ice’ was for her own consumption.

The defendant is 54 years of age. She is married but has no contact with her husband and her adult son. She has criminal records. Apart from gambling conviction back in 2005, in 2011 she was fined for possession of dangerous drug. In 2013, for a charge of trafficking in dangerous drug and other drug-related offences, she was sentenced to a total of 6 years’ imprisonment.

In mitigation, learned counsel for the defence, Mr William Lam, stressed that the defendant had pleaded guilty at the earliest opportunity. He told the court that the defendant completed A-Level education. She has hearing impairment and this prevented her from steady jobs. She had worked as an estate agent and part-time waitress. As her hearing ability has been deteriorating, she was unemployed at the time of the arrest.

She became a drug addict under the influence of her ex-boyfriend in around 2009. When she had broken up with the boyfriend, she lost his financial support. She committed the present offence as she needed money to satisfy her drug abuse.

Mr Lam said the defendant is full of remorse and has the support of her siblings. She will undertake studies while in custody to equip herself to turn over a new leaf. Her father is 81 years old and mother 75 years. Her father does not enjoy good health. He is now paralysed and is bed-bound.

In AG v Pedro Nel Rojas [1994] 2 HKCLR 69, it was held that the guidelines for sentence in R v Lau Tak Ming [1990] 2 HKLR 370 are applicable to cases of trafficking in cocaine. In Lau Tak Ming, the Court of Appeal held that if the narcotic content of the heroin being trafficked in was up to 10 grammes, the sentence to be considered is 2 to 5 years; and if the narcotic content was between 10 to 50 grammes, a sentence of 5 to 8 years should be considered. In all the circumstances of the present case, I do not consider there are any reasons to justify a departure from the tariff.

This was the second time the defendant committed the offence of trafficking in dangerous drug. I have considered whether the sentence should therefore be enhanced and come to the view that the defendant can be given a last chance. I will not enhance the sentence by reason of the defendant’s previous conviction record.

Having considered the whole of the relevant circumstances and mitigation of counsel, I will adopt the following starting points for the trafficking charges. For Charge 1, 54 months. Charge 2 involved two kinds of drugs, with cocaine being the obvious prominent drug both in terms of degree of harm and quantity. There was a total narcotic content of 27.88 grammes for which a starting point of 76 months would have been, in my judgment, appropriate. There were also 3.18 grammes of cannabis in herbal form. The small quantity of cannabis by itself does not have much significance in sentence in the circumstances of the present case.

The fact that more than one type of dangerous drugs was found in possession of the defendant amounts to an aggravating factor but in the circumstances of the present case, I am of the view that a starting point of 76 months is sufficient to reflect the degree of seriousness.

In the circumstances of the present case, it is appropriate for me to take into account the total quantity of the dangerous drugs in deciding the overall sentence for the trafficking charges. The total narcotic content was 36.27 grammes. In my judgment, the notional ultimate starting point for the overall sentence for these two charges should be 83 months.

As for the possession charge which concerns 1.25 grammes of ‘Ice’, despite the quantity was small, in all the circumstances, the latent risk cannot be ignored. I adopt 12 months as the starting point.

The defendant pleaded guilty before the magistrate and is entitled to a one-third discount for each charge. Having considered the whole circumstances, I am of the view that this is the extent of discount the defendant is entitled to.

The defendant, please stand up. For these reasons, I sentence you as follows: Charge 1, 3 years’ imprisonment; Charge 2, 4 years and 2 months’ imprisonment; Charge 3, 8 months’ imprisonment.

I have to take into account totality and in consideration, as said, I will consider the overall sentence for Charges 1 and 2, having regard to the total quantity of the drugs involved. Having given a one-third discount, the ultimate overall sentence for the two charges should be 55 months.

I am also of the view that it is appropriate to order the sentence for the possession charge to be concurrent with that of the trafficking charges. Accordingly, I order the sentences for Charges 2 and 3 to run concurrently and 5 months of the sentence for Charge 1 to run consecutively to that of Charges 2 and 3.

You are to serve a total sentence of 4 years and 7 months.