HKSAR v. FONG CHI-KEUNG

HCCC 114/2018

HCCC 131/2018

(Heard together)

[2018] HKCFI 2324

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 114 OF 2018

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AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 131 OF 2018

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

There are before me two cases committed for sentence. As the facts of the two cases are related, there were originally a single case and now placed before me to be dealt with together for sentencing.

The defendant in HCCC 131/2018, Wong Chun-kit pleaded guilty before a magistrate to two counts of trafficking in a dangerous drug. The quantity of dangerous drugs involved in the first charge is 1,996 grammes of a solid containing 1,244 grammes of cocaine. The quantity of dangerous drugs involved in the second charge is 7,968 grammes of a solid containing 5,038 grammes of cocaine.

The total estimated street value of the cocaine amounts to over HK$9.6 million.

The defendant in HCCC 114/2018 Fong Chi-keung pleaded guilty before a magistrate to two counts of trafficking in a dangerous drug. The quantity of dangerous drugs involved in the first charge is 7,968 grammes of a solid containing 5,078 grammes of cocaine. This is the same batch of the dangerous drugs involved in the second charge of HCCC 131/2018. The quantity of dangerous drugs involved in the 2nd charge under HCCC 114/2018 is 10,101 grammes of a solid containing 6,446.9 grammes of cocaine.

The total estimated street value of the cocaine in relation to this case amounts to over HK$17.4 million.

On 27 May 2017 at 16.50 hours, Wong Chun-kit was intercepted by the police at Tower 8, Corinthia by the Sea, Tseung Kwan O. He was at that time walking towards the carpark carrying a backpack. Upon search, the drugs relevant to the first charge of HCCC 131/2018 was found inside his backpack.

Under caution, he said the drugs were taken from Flat G on the 3rd floor of the building. With the keys found on him, the police gained access to the unit and inside the toilet of the unit, the drugs relevant to the 2nd charge of HCCC 131 was found. Under further caution, Wong Chun-kit admitted he was responsible for delivering the drugs to others.

At 2128 hours on the same day, Flat B on the 7th floor of the same building was broken in by the police. In one of the bedrooms, the drugs relevant to the 2nd charge of HCCC 114/2018 was found inside a suitcase. Some documents in the name of Fong Chi-keung were also found. The police then laid ambush at Fong Chi-keung’s residence and arrested him there.

Under caution, Fong Chi-keung admitted renting Flat B of the 7th floor of the building and keys found on Fong Chi-keung are accessible to both units. That is, Flat G on 3rd floor and Flat B on 7th floor of the building.

In the video-recorded interview, Fong Chi-keung admitted using the two units for drug trafficking activities.

Wong Chun-kit is now 30 years old, he was educated to Form 5 level and is now single. He has six previous convictions with one record of trafficking in dangerous drug and four records of possession of dangerous drug. The trafficking of dangerous drug he committed in 2006 for which Wong Chun-kit was sentenced to the rehabilitation centre. He was at that time 18 years old.

Mr Lau, counsel for Wong Chun-kit, submitted that the defendant is a drug addict since 2006 and had entered into the DATC before. Mr Lau submitted that the defendant committed the personal offense for financial reason. He said there is no aggravating factor in this case and urged this court not to enhance the sentence because of defendant’s previous record.

Trafficking in dangerous drugs is a very serious offence. Those who have committed this offence will inevitably face with a long imprisonment sentence. The length of imprisonment imposed depends mainly on the quantity of drugs involved.

For trafficking in cocaine, in considering sentence this court should follow the tariff laid down by the Court of Appeal in Queen v Lau Tak Ming [1990] 2 HKLR 370. And also the case HKSAR v Abdullah [2009] 2 HKLRD 437. As per the tariff set out in Abdullah, for trafficking in cocaine of a quantity between 1,200 grammes and 4,000 grammes, a starting point of 23 to 26 years’ imprisonment should be adopted. For trafficking in a quantity between 4,000 grammes and 15,000 grammes, a starting point of 26 to 30 years’ imprisonment should be adopted.

In HCCC 131/2018, the quantity involved is in total 6,292 grammes. The appropriate starting point is therefore, in my view, 26 years and 9 months’ imprisonment for the overall quantity involved.

For the 1st charge, I will adopt a starting point of 23 years’ imprisonment and for the 2nd charge I will adopt a starting point of 26 years’ imprisonment.

The heavy sentence imposed for this kind of offense is for deterrent purpose. Financial hardship is not a valid mitigating factor. The only valid mitigating factor in this case is the defendant’s early guilty plea. Full discount should be given for the guilty plea and Wong Chun-kit’s sentence shall be reduced to 15 years and 4 months for the 1st charge and 17 years and 4 months for the 2nd charge.

I order that 6 months of the sentence of the 1st charge to run consecutively to the sentence of the 2nd charge, making a total of 17 years and 10 months’ imprisonment to reflect the total quantity of the drugs involved.

Fong Chi-keung is now 26 years old. He is single and has a clear record. Mr Donald, counsel for Fong Chi-keung, submitted that Fong committed the offence because his family were in desperate need of money. His parents were about to retire, his sister was divorce and with two children and in need of financial assistance. Fong Chi-keung’s parents and also his sister wrote to this court to ask this court to give him leniency.

As I said, the heavy sentence imposed for this kind of offences is for deterrent purpose. Mitigation like financial situation and clear record are not valid mitigating factors. The only valid mitigating factor in this case is again, the defendant’s guilty plea and he will receive a full one-third discount because of it.

In HCCC 114/2018, the total quantity involved, the total quantity of drugs involved is 11,484.6 grammes. Applying the tariff in Abdullah, the appropriate starting point in respect of the total quantity of cocaine involved should be 28 years and 9 months’ imprisonment. In this case, for both charges, I would adopt a starting point of 26 years’ imprisonment.

Taking into account the defendant’s guilty plea, the sentences are reduced to 17 years and 4 months for each charge. I order that 1 year and 10 months of the 1st charge to run consecutively to the 2nd charge, making a total of 19 years and 2 months’ imprisonment to reflect the overall quantity of the drugs involved.