HKSAR v. CHUN KING FUNG AND ANOTHER

HCCC 331/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 331 OF 2016

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

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COURT:

The two defendants in this case have each been convicted, on their own plea, of one charge of trafficking in dangerous drugs.

The Particulars of Offence of the 1st count against the 1st defendant provide that on 28 September 2015, at the Novotel Hong Kong Nathan Road Kowloon, No 348 Nathan Road, Yau Ma Tei, Kowloon, in Hong Kong, the 1st defendant unlawfully trafficked in a dangerous drug, namely approximately 215.72 grammes of a solid containing approximately 101.61 grammes of cocaine.

The Particulars of Offence for the 2nd count against the 2nd defendant provide that on 28 September 2015, at Room 1520, Novotel Hong Kong Nathan Road Kowloon, No 348 Nathan Road, Yau Ma Tei, Kowloon, in Hong Kong, the 2^nd defendant unlawfully trafficked in dangerous drugs, namely approximately 72.52 grammes of a solid containing approximately 47.57 grammes of cocaine, 1.97 grammes of cannabis in herbal form and 27.5 grammes of a powder containing 15.6 grammes of cocaine.

The Summary of Facts, which has been admitted by both the 1st and the 2nd defendants, provides that on 27 September 2015, police officers carried out an anti-dangerous drug operation at the Novotel Hotel Nathan Road Kowloon, in Yau Ma Tai. They kept observation on Room 1520 at the adjacent room, ie, Room 1518. They also observed via the surveillance cameras at the hotel’s security control room.

At 0039 am on 28 September 2015, an officer saw, via the surveillance camera, the 2nd defendant exiting Room 1520. At 0042 am, the officer observed the two defendants appearing at the hotel reception together and the two thereafter went to Room 1520 with the 1st defendant carrying a black Adidas plastic bag. At 1.20 am, the 1st defendant exited Room 1520, carrying a black Adidas plastic bag. He proceeded to the lobby on the 1st floor where he sat on a sofa.

At 1.30 am, the 2nd defendant was detained as he exited the room and access to the room was gained the access card found on him.

The officers searched the room and found, inside an opened safe in the wardrobe, the following:

(i) A cloth bag containing eight transparent plastic bags containing a total of 59.48 grammes of a solid containing 34.72 grammes of cocaine, a pellet of suspected cocaine (Exhibit 8) and two transparent plastic bags containing a total of 1.97 grammes of cannabis in herbal form.

(ii) A transparent plastic bag containing 27.5 grammes of a powder containing 15.6 grammes of cocaine.

(iii) A box of bi-carbonate soda powder containing 27.9 grammes of a powder which did not contain any controlled substances.

(iv) A paper packet containing 0.94 gramme of a solid containing 0.9 gramme of cocaine.

(v) A piece of white tissue paper containing 3 grammes of a solid containing 2.85 grammes of cocaine.

(vi) A glass measuring cup an electronic scale and a roll of tin foil and a pair of scissors.

After being cautioned, the 2nd defendant stated: “The dangerous drugs inside the safe at the room are mine. It has nothing to do with the other people”.

The estimated retail value of the drugs found is HK$105,621.

HK$21,148.50 in cash and an access card for Room 1520 were found on him.

Meanwhile, the officers detained the 1st defendant after a brief attempt by him to escape. A search of the black Adidas plastic bag carried by him produced the following:

(i) A transparent plastic bag containing 12 pellets of suspected cocaine, which after mixed up with Exhibit 8 were found to be 13 pellets containing a total of 196 grammes of a solid containing 85.7 grammes of cocaine.

(ii) Two transparent plastic bags containing a total of 28.82 grammes of a solid containing 25.01 grammes of cocaine.

After being arrested and cautioned, the 1st defendant stated, “The stuff was given to me by ‘Kam Mo Ki’. After that, he asked me to get a room. He said that someone would call me later on. Someone would come to take the stuff”.

Cash of $10,322.50 was found on him.

The estimated retail value of the cocaine found in the possession of the 1st defendant is HK$227,800.

Both defendants exercised their right of silence in the later video-recorded interviews.

At the police station, the Exhibits Officer weighed all the drugs seized. The weight of Exhibit 8 was 9.1 grammes. After the forensic analysis of the drugs, this weight was deducted from the gross weight and narcotic weight of the solid of cocaine found in the possession of the 1st defendant but added to the same under the custody and control of the 2nd defendant.

The 1st defendant now admits and accepts that he trafficked in the drug particularised in the 1st count, and the 2nd defendant now admits and accepts that he trafficked in the drugs particularised in the 2nd count.

By way of personal background, the 1st defendant is 39 years old. He was born in Hong Kong in July 1977. He has received education up to Form 3 secondary level in Hong Kong. At the time of his arrest, he was a transportation worker earning around $10,000 a month. He is married but his wife had deserted him a few years ago. Prior to his arrest, he lived in a public housing unit with his mother, brother, and his 10-year-old daughter.

The 1st defendant has 13 previous convictions, eight of which were for possession of dangerous drugs. He has one previous conviction for manufacturing dangerous drugs which was recorded in 2007, for which he was sentenced to 2 years’ imprisonment. He has three previous convictions for trafficking in dangerous drugs which took place in 2008 and 2011.

In mitigation, Mr Roderick Wu, realistically, submitted on behalf of the 1st defendant that there is only one strong mitigating factor in this case; that is his guilty plea today. The 1st defendant further says that his intention was to earn quick money in order to solve his addiction problem and to assist his aged mother. However, as has been held by the courts on many previous occasions, personal and family circumstances of the defendant, and the circumstances leading to an offence would count much less in drug trafficking cases than in others, because those offences demand, as a matter of public protection, deterrence as an overwhelming consideration.

By way of personal background, the 2nd defendant is 37 years old. He was born in Hong Kong in October 1979 and he has received education up to Form 1 secondary level in Hong Kong. He was unemployed at the time of his arrest but the 2nd defendant had worked as a renovation worker and warehouse assistant after leaving school. He is married. Prior to his arrest, he lived in a housing estate unit with his wife and his son who is a Primary 5 student.

The 2nd defendant has 17 previous convictions, four of which were for possession of dangerous drugs. Also, he has two previous convictions for smoking/injecting dangerous drugs. He has one previous conviction for trafficking in dangerous drug which was recorded in 2002, when he was sentenced to 44 months’ imprisonment.

In mitigation, Ms Catherine Wong accepts that the strongest mitigating factor is the 2nd defendant’s guilty plea. I was further told that the 2nd defendant wanted to make some quick money for his family. He was unemployed due to a medical condition affecting his ankles. However, I must repeat my earlier observation that his personal and family circumstances offer little mitigation, as serious drug trafficking offences call for deterrent sentences.

I shall deal first with the sentence of the 1st defendant. The narcotic content of the dangerous drug involved in Count 1 is 101.61 grammes of cocaine. In this jurisdiction, sentencing for trafficking in cocaine is aligned to the guidelines for trafficking in heroin contained in R v Lau Tak Ming [1990] 2 HKLR 370. According to the Lau Tak Ming case, for trafficking in between 50 grammes and 200 grammes of heroin, the proper sentence to be imposed after trial should be 8 to 12 years’ imprisonment.

In my view, following the guidelines in the Lau Tak Ming case and based on the quantity of the narcotic involved, the proper starting point for sentence on the 1st count against the 1st defendant should be 9 years and 4 months’ imprisonment.

I shall give the 1st defendant the full one-third discount for his guilty plea.

The 1st defendant is accordingly sentenced to 6 years and 2 months’ imprisonment.

I now turn to the sentence of the 2nd defendant. The narcotic content of the cocaine involved in Count 2 is approximately 63.17 grammes. Again, following the guidelines in the Lau Tak Ming case and based on the quantity of the narcotic (cocaine) involved, the proper starting point for sentence on the 2nd count against the 2nd defendant should be 8 years and 4 months’ imprisonment.

For the purpose of determining the starting point, I would ignore the 1.97 grammes of herbal cannabis involved. I take the view that even if this quantity is of the more potent cocaine drug, it would make hardly any difference to the starting point.

Ms Catherine Wong, on behalf of the 2nd defendant, submitted that a part of the drugs involved in the 2nd count was in the 2nd defendant’s possession for his own consumption. Ms Wong submitted that the 2nd defendant was a habitual drug user. His first conviction for possession of dangerous drug went as far back as 1998. His urine test when admitted to the Lai Chi Kok Reception Centre on 30 September 2015 was positive both for amphetamine and cocaine.

The stance of the prosecution is that, given the 2nd defendant’s prior criminal record, the prosecution is prepared to accept that at the material time the 2nd defendant was a user of cocaine. The prosecution further accepts that a very small proportion of the drugs which were the subject matter of Count 2 was for the 2nd defendant’s self-consumption. However, the prosecution cannot accept that a “significant proportion” of the drugs were for self-use.

Given the prosecution’s position, and after having taken instructions from the 2nd defendant, Ms Wong conceded on behalf of the 2nd defendant that he would not try to establish that a “significant proportion” of the drugs were intended for self-consumption.

In these circumstances, the 2nd defendant is clearly not entitled to the 10% to 25% discount indicated by the Court of Appeal in HKSAR v Tam Ling Yuen [2016] 2 HKLRD 572, which is appropriate only where there is a finding that a “significant proportion” of the drug being unlawfully trafficked was intended for self-use.

In all the circumstances of this case, I am only prepared to give a discount of 4 months to reflect the 2nd defendant’s claim in mitigation that a portion of the drugs was intended for his own consumption. This takes the starting point down to 8 years’ imprisonment.

I shall also give the 2nd defendant the full one-third discount for his guilty plea.

The 2nd defendant is accordingly sentenced to 5 years and 4 months’ imprisonment.