HKSAR v. Fu Kam Ming, Andy

HCCC 414/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 414 OF 2015

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

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COURT: The defendant was convicted on his own plea of one count of trafficking in a dangerous drug, contrary to Section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

The facts disclosed that the defendant hired a seven-seater vehicle driven by a professional driver surnamed Chan to take him back from the mainland to Hong Kong. En route, Chan was asked to drive the defendant to another place, when an unidentified man passed a black travel bag to the defendant. When Chan asked the defendant what was inside the bag, the defendant said they were samples of clothes. And when the vehicle stopped at the Lok Ma Chau Control Point, both the defendant and Chan were asked by the customs officer whether there was anything to declare, and both the defendant and Chan answered in the negative.

The customs officer then directed the vehicle to be driven to the customs check area. The defendant took the black travel bag with him to a search room, after admitting to the custom officers that the bag was his. Upon search the dangerous drugs specified in the indictment, namely 9.87 kilogrammes of a crystalline solid containing 9.53 kilogrammes of methamphetamine hydrochloride, with a street value of over HK$3.9 million was found.

Upon arrest and under caution, the defendant claimed the stuff was a dye for bleaching cloth, and the defendant agreed to and took part in a controlled delivery operation and another person was arrested and later charged. However, that other person was not prosecuted upon legal advice at a later stage.

Now, although the defendant said, under caution, during the video-recorded interview that he did not know what it was he was collecting in Shenzhen to bring to Hong Kong, except that it has something to do with dye for processing cloth, he had confirmed in the post record of his arrest by the custom officer that he had told the custom officer what was inside the travel bag was “Ice”, which he helped someone to deliver for a reward of HK$10,000.

The defendant admitted before me, when he offered his plea of guilty, that he knew what was inside the bag was “Ice”, dangerous drug, and he brought the dangerous drug, “Ice”, in the quantity specified in the indictment into Hong Kong for a reward of $10,000.

The defendant is a 46-year-old divorcee, and he had a son and a daughter. He has 11 previous convictions, two of them are for the possession of dangerous drugs.

In mitigation, Mr Adonis Cheung, counsel for the defendant, submitted that the defendant is remorseful and wanted to plead guilty earlier, hence the plea is taken before the scheduled trial dates. The defendant was not a drug addict at the time of the offence, although he was one when he was sentenced to a Drug Addiction Treatment Centre back in 1994.

The defendant worked as a courier, and he suffered from liver stone problem. He committed the present offence for a reward of $10,000. Mr Cheung asked me to take into account his early plea and the fact that he had taken part in the controlled delivery.

Trafficking in a dangerous drug is a serious offence. On conviction, on indictment, a person is liable to a fine of $5 million, and to imprisonment for life. As this offence took place after June 2014, the guidelines set down by the Court of Appeal in the case of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 is applicable. For the trafficking of 4 kg to 15 kilogrammes of “Ice”, in accordance with the guidelines set down in the case of HKSAR vs Abdallah [2009] 2 HKLRD 437, the starting point is one of 26 to 30 years.

After considering the circumstances of this case and the role played by the defendant, I am of the view that a starting -- and the quantity of the drugs involved, of course, I am of the view that a starting point of 28 years is appropriate.

I will now have to consider whether there are any aggravating factors to enhance the starting point. An obvious aggravating factor here is that an international element is involved, that is, the dangerous drug was brought in by the defendant from mainland China to Hong Kong. The quantity involved here is well over 1 kg. In the judgment of Abdallah, the Court of Appeal said that for the trafficking of over 1 kg of dangerous drug, the enhancement for international element would not be less than 2 years. I am of the view that an enhancement of 2 years is appropriate in this case.

Although the defendant is not a first offender, and he had two drug-related previous record in possession of a dangerous drug, I will not consider further enhancing the starting point.

The defendant had offered a timely plea, and is entitled to a full one-third discount.

I also accept that the defendant is remorseful. The defendant took part in a controlled delivery, which turned out to be a failure, in the sense that although someone was arrested, but that someone was not prosecuted.

The Court of Appeal in the case of HKSAR v Jardin Rodela Maningas, unreported, CACC 278/2011 expressed the view that a defendant ought to have been given some credit for his or her preparedness to assist in securing the apprehension of the person or persons in Hong Kong to whom the drugs were to be delivered. It is important, as a matter of principle, to encourage arrested persons to assist in such a manner. In that case, although the delivery failed, the failure did not lie at the door of that particular defendant. So likewise, in the present case, the failure does not lie at the door of this defendant. I will give the defendant some credit for this failed delivery.

I am of the view that a total discount of 40 per cent, that is, inclusive of the one-third discount, and the failed delivery, is appropriate here.

A sentence of 30 years, minus a 40 per cent, or given a 40 per cent discount, in my calculation, comes to one of 18 years. So for this offence of trafficking in a dangerous drug, the defendant is sentenced to 18 years’ imprisonment.