HKSAR v. Fung Chun Ho

HCCC 47/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 47 OF 2016

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

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COURT: Defendant, you have pleaded guilty to two charges of trafficking in a dangerous drug before a magistrate on 22 January 2016. Upon your pleas of guilty, you were committed to the Court of First Instance for sentence.

In relation to the 1st charge you admitted that on 28 March 2015 at the Customs Arrival Hall at Lok Ma Chau Control Point, New Territories, you unlawfully trafficked in 111 grammes of a mixture containing 76.4 grammes of heroin. That was

In respect of the 2nd charge, you admitted that on the following day, 29 March, at your residence in Hung Cheuk Lau, Kwun Tong Garden Estate, Kwun Tong, you unlawfully trafficked in 146 grammes of a mixture containing 102 grammes of heroin hydrochloride.

At about 9.00 pm on 28 March 2015, you were intercepted at the Customs Arrival Hall at Lok Ma Chau Control Point for Customs clearance upon your arrival from China on an inbound coach. The drugs in Charge 1 were found contained in five separate packets underneath your underpants.

Under caution you stated that the substance was heroin which you had bought in Shenzhen and was for your own consumption.

On the following day, at about 3.45 am, you were brought back to your home for a house search. The drugs in Charge 2 were found in your bedroom. They were contained in six separate packets. Also found was an electronic scale, a packet of ziplock bags and a packet of plastic straws.

Under caution, you stated that the substance was for your own consumption.

From the travel movement record, you had left Hong Kong on 28 March at about 1.42 pm and returned to Hong Kong at 8.50 pm via Lok Ma Chau.

The estimated retail value of the heroin seized in this case is $186,800.

Defendant, you are 38 years of age. You were born in Hong Kong and are single. You were educated up to secondary school level. At the time of arrest you were a decoration worker earning approximately $20,000 a month.

You have 15 previous convictions arising out of 14 occasions: ten of those were drug-related, nine are for possession of dangerous drugs, one is for possession of equipment in relation to dangerous drugs. You have been sentenced to the Drug Addiction Treatment Centre on six occasions. You have no similar convictions for drug trafficking.

Your counsel, Mr Chase Pun, has mitigated on your behalf today. He stated that you have been a heroin addict since the age of 14. In his mitigation he submits that a part of these drugs were for your own consumption. He accepts that this is a large quantity of drugs but submits that a significant part was for your own consumption.

In support of your claim that the drugs were for your own consumption, Mr Pun has asked this court to look at the long history of drug abuse and your criminal record plus the fact that upon arrest between 2.30 pm and 3.50 pm on 29 March, you were taken to a methadone clinic to take methadone for your drug dependency by the Customs and Excise.

In his submissions, Mr Pun has properly and correctly referred me to the authorities in respect of the tariff case for trafficking in heroin and the tariff case for the element of importation and the cases for where part of the drugs are for self-consumption which I will not mention in my reasons.

In both charges you were trafficking in the drug heroin. In sentencing you for both charges, I will take the total quantity of heroin in both charges. The total of quantity of heroin involved was 178.4 grammes.

The guideline tariff case for sentencing in trafficking for heroin is that of Lau Tak Ming. For amounts between 50 and 200 grammes, the starting point after trial is laid down as that between 8 to 12 years’ imprisonment.

Taking the quantity that you had for trafficking, had you been convicted after trial I would have taken a starting point 11 years and 3 months’ imprisonment. However, given the fact that I accept that part of the drugs were for your own consumption, I take a lower starting point of 9 years and 11 months’ imprisonment.

Giving you the usual one-third discount, you shall therefore be sentenced to a term of 6 years and 8 months’ imprisonment.

I shall now sentence you individually for each charge.

On Charge 1, you were trafficking in 76.4 grammes of heroin. Had you been convicted after trial, a sentence of 8 years and 6 months would have been appropriate.

You were, however, in respect of this charge importing the drugs into Hong Kong and therefore there is an international element that requires an enhancement of that sentence and I would enhance that sentence by 6 months’ imprisonment making the sentence point that of 9 years’ imprisonment.

You have pleaded guilty to the charge and therefore the usual one-third discount applies. You shall be sentenced on Charge 1 to that of 6 years’ imprisonment.

In respect of Charge 2, the quantity of heroin was 102 grammes. Had you been convicted after trial, a sentence of 9 years and 3 months’ would have been an appropriate starting point. Giving you full credit for your plea of guilty, that sentence will be reduced one of 6 years and 2 months.

To reflect the total sentence of 6 years and 8 months, I order 6 months of Charge 1 to run consecutive to Charge 2 and the remaining terms to run concurrently.