HKSAR v. FONG CHIN YEE

HCCC 164/2019

[2020] HKCFI 540

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 164 OF 2019

-----------------

-----------------

---------------------------------

Transcript of the Audio Recording

of the Sentence in the above Case

---------------------------------

COURT:

The defendant had pleaded guilty in the Magistrates’ Court to one count of trafficking in a dangerous drug, namely 248 grammes of a solid containing 215 grammes of ketamine.

The facts are quite common these days. It is that the defendant was the consignee of a parcel from Malaysia and the parcel was examined by customs officers and found to contain the drugs which is the subject matter of the charge.

A controlled delivery operation was mounted and the defendant accepted the parcel at the address which was on the parcel. After his arrest, he was cautioned and the defendant admitted that he had been recruited by someone called Peter Chai to receive the parcel for a reward. A further controlled delivery operation was mounted in that the defendant contacted Peter Chai to come collect the parcel. Unfortunately, this person did not do so.

The defendant was interviewed further under caution and gave a full account of how he happened to be contacted by this Peter Chai and how the transaction was arranged. It was through a WeChat account and a subsequent investigation showed the matters told by the defendant was supported by the WeChat messages.

The total amount of the drugs is about HK$117,056.

The defendant is aged 30 and he has a clear record and it is a sad tale, as far as his background is concerned, as submitted to me by Miss Tsang. It is very tragic that, as Miss Tsang submitted, his late father passed away when he was 1 to 2 years old. The mother was unable to take care of him so he was raised in a small group home.

Later, the mother became ill and could not take care of the younger sister. The defendant then took over the job. I accept, and according to the letter of his sister, that the defendant had been working very hard all along, trying to better himself. Unfortunately, the matter which led to this offence was that he was the victim of an internet scam and lost a lot of money because of that, and that is why he was tempted to make quick money.

I understand all that. However, trafficking in dangerous drugs is a very serious offence. As Miss Tsang correctly pointed out, the Court of Appeal has laid down sentencing guidelines for trafficking in ketamine. This is in the case of Hii Siew Cheng [2008] 3 HKC 323 that for trafficking in between 50 to 300 grammes would merit a guideline starting-point sentence of 6 to 9 years’ imprisonment.

As worked out by Miss Tsang, it would be therefore on a strict mathematical calculation, it would be just under 8 years’ starting point for this amount of drugs. I consider that a proper starting point for this amount of drugs would be in the region of 7½ to 8 years.

I take into account all that has been said and the facts of the case, the early plea of the defendant, his full confession backed up by the WeChat messages, and I will adopt a lower starting point of 7½ years.

Of course, there is the enhancement for the international element which I would ordinarily enhance by about 6 months’ imprisonment. But I do take into account the fact also that the defendant very quickly and honestly agreed to participate in a further controlled delivery and although unsuccessful, he did play his part. And so I will therefore consider that the enhancement would be cancelled out by the fact of his co‑operation.

So I will maintain the starting point at 7½ years and I will give the defendant one-third off for his early plea. So I will sentence the defendant to 5 years’ imprisonment. And, hopefully, this will give the defendant time to learn a trade whilst in prison and so when he comes out, he will be able to start anew.