HKSAR v. YUEN TSZ FUNG AND ANOTHER

HCCC 482/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 482 OF 2016

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

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COURT:

Both defendants have pleaded guilty to one count of trafficking in a dangerous drug, namely 3.56 kilogrammes of a crystalline solid containing 3.51 kilogrammes of methamphetamine hydrochloride.

The facts reveal that in the early hours of 13 May 2016, at about 2.30 am, both defendants were seen by police officers carrying backpacks and plastic bags out from the City Garden Hotel in North Point. Both defendant loaded their backpacks and plastic bags into the vehicle and the 1st defendant was seen discarding two plastic bags into a nearby rubbish bin. The 2nd defendant then returned to the hotel. Police officers revealed their identity; the 1st defendant tried to flee but was subdued. The 2nd defendant was arrested inside the hotel.

A search of the vehicle revealed that the 2nd defendant’s backpack, which was black and pink, contained 16 facial mask boxes with substance inside. The 1st defendant’s black Nike backpack contained a sealing machine. Also found in the car was a plastic bag containing two packaging machines, piles of tinfoil bags, two funnels and a roll of plastic wrapping sheet. There was also a paper box containing a metal pot and an electronic heater. When a police officer tore off one tinfoil packet of the facial mask, he found suspected ‘Ice’ inside. Also, from the rubbish bin into which the 1st defendant had thrown items, was found a metal pot and a plastic bag containing some facial masks and empty facial mask boxes.

A body search of the 2nd defendant revealed two key cards of the hotel and a receipt of the hotel. Inquiries revealed that it was the 2nd defendant who rented Room 1203. Inside Room 1203 were found cigarette ends which, upon forensic analysis, showed that they had actually been consumed by both defendants.

Under caution, upon arrest, the 1st defendant admitted that he soaked the ‘Ice’ into the facial masks because he needed money. And under caution after the arrest, the 2nd defendant admitted that he helped his friend, the 1st defendant, to rent the hotel room and soak the drugs into the facial masks.

Subsequently, in a video recorded-interview, the 1st defendant explained his role in this drug trafficking and he admitted that he gave the money to the 2nd defendant to rent a room at the hotel, and he was the one who picked up the drugs and drove back to the hotel with the drugs, whereupon, inside the hotel room, he soaked the drugs into the facial masks and that the masks were then packaged up. The 1st defendant also admitted he would receive HK$10,000 as a reward.

Also, as Mr Chung has pointed out, in his video-recorded interview, he admitted that when the 2nd defendant found out that he was dealing with drugs, the 2nd defendant wanted to leave, but he was persuaded by the 1st defendant to remain.

It is also in the video-recorded interview taken from the 2nd defendant that the 2nd defendant said that he did not participate in the soaking of the facial masks in the hotel room but he did assist in the packing of those masks. He assisted the 1st defendant to clean up the room and subsequently took the backpacks down to the car. The 2nd defendant said he was not offered any reward.

The metal pot that was subsequently found in the rubbish bin was analysed and found to contain traces of methamphetamine hydrochloride. So it is clear that what was recovered from the rubbish bin into which the 1st defendant had thrown objects was this metal pot that was used in the process of packing or dealing or soaking the facial masks. The 2nd defendant’s fingerprint was also found on the top of the electronic heater.

According to the police expert, the street value of the drug seized was HK$1,075,120.

As Mr Chung correctly pointed out, in drug trafficking cases, the background of the defendant pales into insignificance compared to the gravity of this offence.

In mitigation, Ms Chu, on behalf of the 1st defendant, pointed out that the 1st defendant is aged 21 and has one previous conviction which is not similar and that he was only doing this because of his financial situation.

His mother’s letter tried to explain away or make excuses for the 1st defendant’s actions because of his poor relationship with his father, causing him to mix with undesirable peers. A letter from a social worker was also submitted, testifying to the fact that the defendant had served in the Neighbourhood Advice Action Council as a volunteer from 2015 to 2016, with good performance.

Mr Chung, on behalf of the 2nd defendant, also submitted that the defendant is aged 21 and has been a good person right up to the committal of this offence, apart from his previous conviction which was not related to drugs. It is clear that for both defendants, this is the first time that they committed the most serious offence of drug trafficking.

What Mr Chung has said with some force is that the 1st defendant was, in fact, the person who led the 2nd defendant into this offence because prior to going into the hotel room, the 2nd defendant did not realise that he was renting the room for drug activity. This is in some way confirmed by the 1st defendant in his video-recorded interview because he did disclose that the 2nd defendant, upon finding out that it was drug related activities, wanted to leave but was persuaded by him to remain. However, what cannot be denied is that the 2nd defendant then participated in the packaging of these drugs and helped move them to the car.

It is also, in mitigation, said by Mr Chung that the 2nd defendant was not expecting any reward for helping the 1st defendant and he was only there out of friendship for the 1st defendant. This is supported, in fact, by the facts as revealed by the 1st defendant in his video-recorded interview because the 1st defendant said he was the only one who went to pick up the drugs from Festival Walk.

The 2nd defendant also produced letters which specifically testify to his good character prior to this offence. There is a very clear letter from the social worker, Ms Cheung, who detailed the participation of the 2nd defendant in these activities in relation to the young people from 2012 to 2016. There was also a letter from his employer who testified to his hard work and motivation.

So in assessing sentence, as has been correctly pointed out by Ms Chu, the Court of Appeal has already laid down guidelines, in the case of Tam Yi Chun [2014] 3 HKLRD 691, for trafficking in large amounts of drugs, of methamphetamine hydrochloride, the court should follow the guidelines laid down for heroin in the case Abdallah [2009] 2 HKC 197 in 2009.

So in relation to this amount of drugs, which is 3.51 kilogrammes of methamphetamine hydrochloride, it would fall into the 1,200 to 4,000 grammes for which the Court of Appeal recommended 23 to 26 years’ imprisonment after trial. So the starting point for this case would be between 25 to 25½ years.

In view of what I have said above, I consider that an appropriate sentence for the 1st defendant would be 25½ years’ starting point, reduced by one-third, because of his plea, to 17 years.

In relation to the 2nd defendant, as I have said, his role, as confirmed by the 1st defendant in his video-recorded interview, apparently is lesser and so I will give a starting point of 25 years, reduced to 16 years and 8 months.