HKSAR v. FUNG YU FUNG

HCCC 372/2023

[2025] HKCFI 4347

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 372 OF 2023

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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 to two counts of trafficking in a dangerous drug on 16 November 2023 and was committed to the Court of First Instance for sentence. Sentence was set down for 4 July 2024. The defendant wrote on 18 March 2024, applying to reverse his pleas. The defendant failed to comply with subsequent directions to file an affirmation which in turn necessitated further hearings and protracted the proceedings.

Once all affirmations from the defendant and each member of his previous legal team were filed, a hearing date was eventually fixed for 21 July 2025 to hear his application to reverse his pleas. The defendant wrote again on 13 March 2025 to abandon this application and maintain his pleas. He requested the court to consider the full one-third discount as if his pleas were unequivocal and tendered at the earliest opportunity.

On the original date of 21 July 2025, the hearing was then set down for mitigation and sentence as requested by the defendant. Legal aid was granted to the defendant for the second time at my request. However on the day, instead of hearing mitigation and considering sentence, I was told the defendant had changed his instructions again and wanted to apply to reverse his pleas. Legal aid was discharged once more. I adjourned his renewed application to reverse his pleas to 22 August 2025. I ruled against the defendant and refused his application on 29 August 2025.

I ruled the defendant’s pleas were unequivocal and there was no basis in law or on the facts to show those pleas were made under either duress, inducement, or misrepresentation. I considered whether in the interest of justice I should exercise my discretion and allow the application and was satisfied there was no basis. I gave full reasons for my decision.

The two counts committed for sentence were both trafficking in a dangerous drug. The particulars of the 1st count were as follows. The defendant, on 19 January 2022 at the lift lobby of 9th Floor, Say Hay House, 92 Hak Po Street, Mong Kok, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 151 grammes of a crystalline solid containing 151 grammes of methamphetamine hydrochloride.

The particulars of the 2nd count were that the defendant on the same day, at Room 903 on the same floor at the same address, unlawfully trafficked in a dangerous drug, namely 296.8 grammes of a crystalline solid containing 296.5 grammes of methamphetamine hydrochloride.

The facts are straightforward. The police were conducting an anti-narcotics operation and had a search warrant for Room 903. They waited in the rear staircase and when the defendant came out of Room 903, they intercepted him. He was searched and inside his left trouser leg the police found a bag containing 18 bags of 151 grammes of pure ‘Ice’. Under caution he admitted he was selling ‘Ice’ to make money.

The police gained access to Room 903 using keys found on the defendant. Inside they found another 22 bags containing 296.5 grammes of pure ‘Ice’ as well as paraphernalia associated with weighing and repackaging drugs. He was arrested again and under caution admitted the ‘Ice’ belonged to him for sale.

Mitigation

The defendant is now 24 years old. He is not a man with a clear record. His first conviction was when he was 14 years old and he was sentenced to probation with the first 12 months of a 24 month order to be residing in a children and juvenile home for shoplifting. 15 months later, he was sentenced to a detention centre order for breach of his probation order. He was subsequently again sentenced to detention centre to be served concurrently when convicted of blackmail.

His last conviction was in August 2019 when he was sentenced to 4 years and 5 months in the Court of First Instance for trafficking in dangerous drugs. He had been released not long before his arrest for these offences in this case and was still subject to a Correctional Services Department supervision order.

I have read the reasons for the sentence for that last conviction. He was sentenced for trafficking a cocktail of dangerous drugs including ‘Ice’, ketamine, and cocaine found in his possession. He pleaded guilty at the earliest opportunity.

Sentencing

I have considered the approach to sentencing those that traffic in dangerous drugs. With the Court of Appeal’s guidance in the most recent authority HKSAR v Lee Ming Ho [2024] HKCA 150, I now consider the six steps as set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.

Those six steps include assessing the gravity of the offence and applicable guideline, identifying the defendant’s role, where within the guideline the defendant should lie, any aggravating factors, any mitigating factors, and lastly passing a sentence which is fair, just and balanced in all the circumstances of the offence and the defendant.

I will take a global approach here in light of the facts and add up the ‘Ice’ in both counts which total 447.5 grammes of methamphetamine hydrochloride.

The first step is to assess the gravity of the offence and identify the applicable guideline according to the drug seized. Taking into account the latest guidelines in HKSAR v Huang Ruifang [2025] HKCA 234, the starting point for trafficking in methamphetamine hydrochloride of between 300 to 600 grammes is 15 to 18 years’ imprisonment. Mathematically, trafficking in 447.5 grammes of ‘Ice’ attracts a starting point of 16 years and 6 months’ imprisonment.

I am satisfied that the role of the defendant in this case was that of a storekeeper and courier, therefore the mathematical starting point of 16 years and 6 months will apply to this defendant.

The fourth and fifth steps require me to consider whether there are any aggravating factors or any exceptional mitigating factors. There are certainly no such mitigating factors here. I note the defendant’s last conviction was for trafficking in dangerous drugs and he had only just finished serving his sentence before he was involved in packing, selling, and delivering ‘Ice’ again but I will not enhance the sentence in this case for this fact. However, I imagine the next time the defendant is before the court for a similar offence, that court may consider him a recidivist.

But for his failed spurious attempt to reverse his pleas, the defendant would have been entitled to a full one-third discount in sentencing. However, he is no longer entitled to that discount reserved for those who plead guilty at the earliest opportunity after having heard his application to reverse his pleas. There were several mention hearings, wasted hearings, and a substantive hearing over the course of 16 months. Much time, financial resources and manpower was wasted.

His first legal team were put to the trouble of drafting several affirmations. They were falsely accused of negligence, misconduct, and even dishonesty whereas the opposite was what I found to be the truth. It was the defendant who deliberately told lies, maligned professional members of the legal profession, and deliberately manipulated the courts, wasted time and financial resources. I take a very serious view of his threat to Ms Ho of his previous instructing solicitor’s firm, that if she did not delay the date of his sentence by whatever means, he would take matters into his own hands and do it “his way”.

It would appear the reason he wanted to delay the date of his sentence was because he has money laundering charges pending and he thought he could manipulate the system to delay sentencing for these charges. It seems he wanted both cases to be dealt with together and presumably assumed he would get a lighter sentence.

It is necessary to look to an extent at the history of this matter to put the court in a position to make an evaluation of the appropriate discount. And I repeat, in my opinion, the time of this court has been significantly wasted as has public financial resources. However, I do not think it is necessary or appropriate to quantify the amount of wasted time or money but it is substantial.

Under the circumstances, I find the defendant will be entitled to a discount of 18 per cent which will reduce the starting point of 16 years and 6 months to 13 years and 6 months’ imprisonment.

Taking into account the last step, I consider this sentence to be fair, just, and balanced in light of the circumstances of the offence, the defendant’s conduct at the proceedings as well as his personal circumstances.

Accordingly, for Count 1, the defendant is sentenced to 13 years and 6 months’ imprisonment.

For Count 2, the defendant is sentenced to 13 years and 6 months’ imprisonment. I order both sentences to be served concurrently, therefore the total sentence is one of 13 years and 6 months’ imprisonment.

I will add here this morning, I have received Father Wotherspoon’s standard letter to this court asking for a 3 month discount for the defendant’s contribution to his campaign to deter others to traffic dangerous drugs. I read an article relating to defendant’s letters to Father Wotherspoon. Father Wotherspoon’s letter is dated three weeks before the original sentencing date. Having been through these proceedings with the defendant over the last 16 months, I am not convinced of his sincerity to reform or his remorse. This letter does set out the defendant’s sad background growing up, but is not a true plea to others to not traffic dangerous drugs. In my view, it is not worthy in this case of any further discount.

Let me repeat, the defendant is sentenced to a total of 13 years and 6 months’ imprisonment.