HKSAR v. FONG TSZ HO AND ANOTHER

HCCC 241/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 241 OF 2014

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Transcript of the Audio Recording
of the Sentence in the above Case
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COURT: There are three counts of offences in the indictment of this case.

The 1st count, which is against the 1st defendant, Mr Fong Tsz-ho, only, is an offence of Conspiracy to traffic in a dangerous drug.

The 2nd count, which is against the 1st defendant and the 2nd defendant, Miss Yau Cheuk-yee, Emily, is an offence of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The particulars of this count are that the two defendants on the 22nd day of October 2013 at a car park outside Wang Kwong House, Wang Tau Hom Estate, Wang Tau Hom, Kowloon, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 0.24 kilogrammes of a powder containing 0.18 kilogrammes of ketamine.

The 3rd count which is against the 1st defendant only is also trafficking in a dangerous drug contrary to the same statutory provision as the 2nd count. The particulars of this count are that the 1st defendant on the 22nd day of October 2013 at Flat A1002, Hong Mei House, Cheung Hong Estate, Tsing Yi, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 254.82 grammes of a powder containing 197.13 grammes of ketamine.

The 1st defendant pleads guilty to Counts 2 and 3, but pleads not guilty to Count 1, while the 2nd defendant pleads guilty to Count 2.

On the application of the prosecution and with the leave of the court, Count 1 is left on court file and is not to be activated without the leave of this court or the Court of Appeal.

Facts Admitted

On 22 October 2013, police officers saw that the 1st and the 2nd defendant lingered in the car park outside Wang Kwong House, Wang Tau Hom Estate, Kowloon. They were seen going up to the rear side of a private car, registration number FS 5649, where the 2nd defendant suddenly squat down, took something out of her handbag and put it down. They then went away in different directions but were intercepted by the police.

Under the rear side of the private car the police found a paper bag inside which there was a transparent resealable bag. Inside the resealable bag there was a white crystalline substance which was later found to be 0.24 kilogramme of a powder of which 0.18 kilogramme was ketamine.

Under arrest and caution the 1st defendant said, “I do not know anything,” while the 2nd defendant said that the paper bag had been given to her by her boyfriend, the 1st defendant, and under the instructions of the 1st defendant, she had put the bag under the private car for someone to collect.

The street retail price of the ketamine is estimated to be $29,760.

After going back to the police station, the 2nd defendant volunteered to take the police to the place where she and the 1st defendant lived. On 23 October 2013, at about 1 am, the police and the two defendants arrived there, which was located at 1002A, Hong Mei House, Cheung Hong Estate, Tsing Yi. The premises will be referred to as “the flat”.

In the middle drawer of the bed inside the flat, the police found a transparent resealable bag inside which there were 12 resealable bags, each containing white crystalline substance; another resealable bag with two resealable bags inside, each containing white crystalline substance; a plastic bag containing a wad of paper bags; five resealable bags, each containing wads of empty resealable plastic bags; an electronic scale, and three spoons.

In another drawer of the bed, the police found a blue bowl containing white crystalline substance; two resealable plastic bags, each containing white crystalline substance, and another electronic scale.

The white crystalline substance inside the various bags was later found to be 264.82 grammes of a powder containing 197.13 grammes of ketamine.

The street retail value of the ketamine at the time was estimated to be $32,616.

Under arrest and caution for trafficking the dangerous drug inside the flat, the 1st defendant said that the house owner of the flat had nothing to do with the dangerous drugs and that a man called “133” had phoned him earlier on and told him to take the dangerous drug to Wang Tau Hom Estate where someone would contact him. He added that the dangerous drugs in the flat were what remained after the delivery.

In a video recorded interview subsequently conducted, the 2nd defendant said that she had lived with the 1st defendant for about two weeks and had seen the 1st defendant sealing the ketamine in the bag before they left home. The 1st defendant had put the paper bag inside her handbag and she knew it was ketamine. They had travelled to Lok Fu and she had put the paper bag underneath the private car under the instructions of the 1st defendant. She was not going to get any remuneration.

The 2nd defendant said in a video recorded interview that he had taken the dangerous drug from the lot in the flat to the car park to a customer on the orders of “133”. He pointed out that the 2nd defendant had nothing to do with the dangerous drug, but he had asked her to carry the drug in her bag and to put the drug down inside the car park. The 2nd defendant had done it for him without any reward, as she was afraid that he would get into trouble.

The 1st defendant claimed that he would receive $200 for taking the dangerous drug to the car park and he had pressured to do it by a friend named Yu Yat-Sing in order to set off the debts he owed to Yu.

The 1st defendant said that he had left a key of the flat for “133” and had then telephoned to tell him where the key was, but he had not seen the person who had put the dangerous drug inside the flat.

Criminal Record

The 1st defendant has 5 criminal convictions of which one was possession of a dangerous drug and one was trafficking in a dangerous drug. He was last convicted of resisting a police officer on 22 January 2014 and was fined $3,000.

The 2nd defendant has a clear record.

Mitigation

The 1st defendant is aged 23, educated up to Form 1, and was a delivery worker at the time of arrest. He has been a ketamine user since he was 17 years of age. The counsel for the 1st defendant informs the court that the 1st defendant has decided to plead guilty some time ago and has done so at the earliest opportunity in court. He was cooperative with the police and make no resistance when being arrested. He gave all the information he had about Yu and “133” and his records of communication with them to the police.

The defence counsel emphasises that the 1st defendant is a young man and the court should take his age into account in sentencing to enable him to rehabilitate. He asks the court to adopt a combined approach and to order a partly concurrent sentence for Counts 2 and 3 to which the 1st defendant has pleaded guilty.

The 2nd defendant is aged 21 and was educated up to Form 3. She has been a drug user of ketamine and “ice” since about one and a half years prior to the present case. The counsel for the 2nd defendant tells the court that the 2nd defendant had worked as a beautician for about two years, but was unemployed for two to three months before the present case.

She was brought up in a single-parent family, her father having deserted the family about 10 years ago. The defence counsel submits to the court mitigation letters of the 2nd defendant, her mother and an uncle. The 2nd defendant says in the letter that her father deserted the family, leaving behind heavy gaming debts when she was 10 years old. Her mother sent her and her elder brother to study in the United Kingdom to avoid them being harassed by the debt collectors. She returned to Hong Kong about three years later and because she was unable to cope with the studies in Hong Kong, she dropped out from school. Her mother suffered from depression and is dependent on medication.

Her relationship with the family was distant and she became rebellious. She came to know some undesirable peers and her boyfriend and had become addicted to dangerous drugs. She committed the offence to help her boyfriend to clear his debts. She now feels the love of her mother who takes great efforts to visit her in prison. She is extremely remorseful.

The uncle of the 2nd defendant, who writes a mitigation letter on her behalf, is a psychotherapist. He outlines the bring up of the 2nd defendant in his letter which takes the form of a statement. He sets out the background of the 2nd defendant and the impacts of the 2nd defendant’s unhappy childhood on her psychological development. He is of the view that a harsh sentence for the 2nd defendant may reduce her chance of breaking the cycle of re-offending. He recommends a rehabilitation programme for the 2nd defendant that will allow her full support and guidance from probation service and her family or a shorter sentence for the 2nd defendant.

The mother also sets out briefly in the letter the bring up of the 2nd defendant and the background of the family. She has noticed that the 2nd defendant has undergone positive changes in her attitude and conduct since this case and is remorseful for what she has done. The mother asks for leniency of the court.

The counsel for the 2nd defendant says that the daughter and mother relationship has become closer now and the 2nd defendant is remorseful for offending the law. He emphasises that the 2nd defendant played a minor role in this case. She was not paid and only committed the offence because she wanted to help the 1st defendant. The defence counsel says that the court has the discretion to pass a lesser sentence on the 2nd defendant.

Sentence

The Court of Appeal laid down clear sentencing guidelines for trafficking in ketamine in the case of Secretary for Justice v Hii Siew Cheng & Anor [2008] 3 HKC 323. For a quantity of 50 to 300 grammes of ketamine the normal starting point is 6 to 9 years’ imprisonment.

The amount of ketamine involved in Count 2 is 0.18 kilogramme, which is equivalent to 180 grammes. The normal starting point is therefore about 7 years 6 months’ imprisonment.

The amount of ketamine involved in Count 3 is 197.13 grammes of ketamine. The normal starting point is about 7 years 9 months’ imprisonment.

The 1st defendant committed the two offences because of economic reasons. This, of course, cannot constitute a valid mitigation factor. The 1st defendant committed this case about nine months after serving time for 40 months for a similar offence of trafficking in dangerous drugs. The court has considered whether the starting point should be enhanced for this reason, but come to the conclusion that it is not fair to do so in the present case as this is the 1st defendant’s only similar previous conviction.

The court therefore adopts 7 years 6 months’ imprisonment and 7 years 9 months’ imprisonment as starting points for the 1st defendant in respect of Counts 2 and 3.

Giving credit to the guilty plea of the 1st defendant, the court sentences him to 5 years’ imprisonment for Count 2 and 5 years 2 months’ imprisonment for Count 3.

To be fair to the defendant, he should not receive a sentence more than he would have got if he had trafficked the dangerous drugs in Count 2 and 3 together. The amount of ketamine involved in the two counts is 377.13 grammes. According to the sentencing guidelines, for a quantity of 300 to 600 grammes of ketamine, the normal starting point is 9 to 12 years’ imprisonment. For a quantity of 377.13 grammes of ketamine, the normal starting point would be about 9 years 9 months’ imprisonment. For a guilty plea, the sentence would become 6 years 6 months’ imprisonment.

After considering this factor, the circumstances of the case and the totality principle, the court orders 1 year 6 months of the sentence of Count 3 to run consecutively to that in Count 2.

The 1st defendant is to go to prison for a total of 6 years 6 months.

The court accepts that the 2nd defendant committed the offence because of her desire to help her boyfriend, the 1st defendant, but the 2nd defendant, being a grown up person, should know that in helping the 1st defendant she would cause tremendous harm to some other people and their families, as well as society as a whole. The court has much sympathy for the unhappy childhood, the poor bringing up and the family problems of the 2nd defendant, but must say that in an offence of such a serious nature all these count very little, if any, towards mitigation.

Having considered the whole circumstances, the court is of the view that there is no justification to depart from the sentencing guidelines. The court thus adopt a starting point of 7 years 6 months’ imprisonment for the 2nd defendant in respect of Count 2.

Giving credit to the 2nd defendant for her plea of guilty, the court sentences her to 5 years’ imprisonment.