HKSAR v. LO KWUN FUNG

HCCC 321/2017

[2018] HKCFI 1787

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 321 OF 2017

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

The prosecution has very responsibly and sensibly accepted the defendant's plea of guilty to possession of a solid containing 20.34 grammes of methamphetamine hydrochloride, commonly known as ‘Ice’ in place of the charge of trafficking. On the facts of this case there was really no prospect of proving the original allegation.

From the moment of his arrest, the defendant has been completely open and frank about his possession of this drug and also the glass bottles which he had purchased in order to smoke it.

The ‘Ice’ was found in a car he had borrowed from a friend. When the defendant was arrested on 2 March 2017 there were two others sitting in the car. The drugs were found inside the car in two particular places but his immediate response was that the ‘Ice’ belonged to him and that the others knew nothing about it. He later explained in a formal interview that he had paid $5,000 for this quantity of ‘Ice’.

His supplier was someone he had known for several years and he described, in some detail, about how he had purchased the drug without giving any information which could possibly have assisted his mitigation.

The actual street value of the drugs was put at just under $5,800. It is not without significance that when he was tested at the Lai Chi Kok Reception Centre the sample provided tested positive for amphetamine.

As the defendant has openly admitted his possession of these drugs since the moment he was arrested, he can be given credit for his plea in these proceedings, 15 months later. There really is no excuse in a simple case such as this for anyone to be kept waiting for the court's decision so long.

The case was actually committed to the High Court on 4 September 2017. The reason for the delay will no doubt be given that the defendant was charged with trafficking to which he had pleaded not guilty and so the case was fixed for trial but anyone looking at the trial papers, as has so sensibly been accepted now, would have seen that this was a possession case, not one of trafficking. Had he been charged in that way the defendant would have pleaded guilty much earlier.

There really has been no sense of urgency in dealing with this case which, I hasten to add, is no fault of those now appearing in the case today.

The fact remains that the defendant has had to wait nearly nine months since committal for his case to be heard despite an entirely cooperative attitude from him from the start. In short, he has either served or will practically have served the sentence that the court has to pass today.

Following the Court of Appeal's decision in HKSAR v Mok Cho Tik [2001] 1 HK 261, I proposed to adopt a basic starting point of 18 months' imprisonment for this quantity of ‘Ice’ but this must be increased in view of the relatively high risk of some of this ‘Ice’ finding its way to another user. This is particularly the case here where there were two ‘Ice’ bottles found in the car where there were two other occupants.

In addition, I am not ignorant of the defendant's considerable criminal record both as a person who uses and has, in the past, trafficked in drugs and who has association with a Triad Society. In all of those circumstances I propose to enhance the starting point by 12 months.

Giving you the full credit for your plea of guilty, the overall starting point which I have adopted for the reasons I have given is one of 30 months. This is reduced by one-third to 20 months' imprisonment, so your sentence is that you will go to prison for 20 months.