HKSAR v. Hsu Ki Fung and Another

HCCC 359/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 359 OF 2015

-----------------

-----------------

--------------------------------------------

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

--------------------------------------------

COURT:

Both defendants have each pleaded guilty to one count of trafficking in a dangerous drug, namely 27.1 grammes of a crystalline solid containing 25.7 grammes of methamphetamine hydrochloride. I will deal with each defendant separately because they pleaded guilty at different times.

The 1st defendant pleaded guilty on 7 September this year and the 2nd defendant had pleaded guilty much earlier, in fact on 16 February this year and she was then remanded for sentence to the end of the trial of the 1st accused. After she had indicated that she was going to plead guilty, I am informed that she had given non-prejudicial statements to the police and the prosecution was informed that she would give evidence against the 1st defendant in the 1st defendant’s trial. So on the first day of trial, the 1st defendant pleaded guilty.

The facts which the 1st defendant admitted to is that on the evening of 26 March, police officers in Portland Street and Ki Lung Street in Mong Kok saw the 1st defendant and the 2nd defendant, and the 1st defendant was seen giving some cash to the 2nd defendant. The 1st defendant was holding a white-coloured paper bag with the name ‘Chanel’ printed on the side and the 1st defendant was seen, together with the 2nd defendant, using their hands to put a white-coloured object into the paper bag. They then parted company and each of them was stopped by different teams of police.

When the 2nd defendant was stopped, she was holding HK$3,000 cash in her hand. When the 1st defendant was stopped, police found inside the Chanel paper bag, a crumpled ball of white tissue paper and inside the white tissue paper was a resealable plastic bag containing the drug which is the subject matter of the charges.

Upon being arrested and cautioned, the 1st defendant said that he had just got that packet of ‘Ice’ from that woman, he said.

The drugs were subsequently analysed by the Government Chemist who certified that these were 27.1 grammes of a crystalline solid containing 25.7 grammes of methamphetamine hydrochloride.

The street value of the drugs was calculated at about $10,732.

The 1st defendant is aged 24 and has a clear record. I am told he comes from a single parent family and had been using illegal substances since he was 13 years old. He met the 2nd defendant a year prior to the arrest and the 2nd defendant had been supplying drugs to him. The 1st defendant asserted through his counsel that he was going to use half of it to give his friend and half to himself. The 1st defendant, at the time of his arrest, was actually unemployed and relied on his father for his financial support.

As Mr Leung has correctly pointed out, the sentencing guidelines laid down for trafficking in methamphetamine hydrochloride is that laid down in Tam Yi Chun (2014)3 HKLRD 691, that for trafficking in between 10 to 70 grammes, it would merit a starting point sentence of 7 to 11 years.

Prior to sentence, my intention was to call for a background report relating in fact, basically, to the children of the 2nd defendant, but since I was calling for a background report on the 2nd defendant, I also called for a background report on the 1st defendant.

There is nothing remarkable in his background. He has half-siblings since his parents separated and he lived with his mother in public housing. When he was young, he was brought up by his paternal grandmother and since failing his Hong Kong Certificate of Education, he had worked for a time as a waiter in a restaurant for a couple of years.

So it is, according to the background report, the parents finally, perhaps hopefully, have come together and are paying attention to the defendant which hopefully will help in his future rehabilitation. It is without a doubt the defendant, probably in his growing-up years, lacked parental supervision and therefore he was led astray into the world of drugs. However, he has to bear some responsibility as he is now aged 24 and no longer a child.

Considering the guidelines that have been laid down in Tam Yi Chun, I consider that an appropriate starting point would be one of 8 years’ imprisonment. So giving him the usual one-third off for his plea, that will bring the sentence down to 5 years and 4 months.

Bearing in mind that he is addicted to drugs, as Mr Leung had pointed out that the urine test from the Correctional Services found him positive for amphetamine, I would deduct a small amount, giving consideration to the fact that, being an addict himself, that he may take a bit of those drugs for his own consumption. But given his unemployment status, I do not consider that it would be a substantial amount.

So I will reduce the sentence from 5 years 4 months to one of 5 years. Hopefully, during this time, the defendant can learn a trade whilst he is in prison.

The 2nd defendant is aged 38 and has previous convictions, in fact, four previous convictions, two of which are to do with dangerous drugs. In 2008, she was in fact sentenced to 5 years’ imprisonment for trafficking in dangerous drugs. The 2nd defendant, it seems, is the more culpable of the two. She is not only older but is more of an expert in the ways of the drug trade.

Unfortunately, she has three sons, all of them lacking the care that a mother should give to them in their growing years and having read the background report from the probation officer, I am very sympathetic to the sons and hopefully, with the assistance of the defendant’s brother and the social welfare, they will grow up and make something of themselves in this world, despite their mother.

I am informed by Mr Fan in mitigation that the defendant is a long-term drug user. She claimed that she trafficked in dangerous drugs in order to raise cash. It is a sad situation because, looking at the previous convictions of the defendant, she has not, over the years, learnt any lesson despite the fact that she had been sent to prison.

In the 2nd defendant’s case, the sentencing guidelines laid down by in Tam Yi Chun by the Court of Appeal also apply. Giving the defendant the usual one-third off for her plea would bring the sentence down to 5 years and 4 months.

There is also the matter of her assistance to the prosecution in giving a non-prejudicial statement earlier on and when the 1st defendant at that time had not yet been tried, and she had offered to give evidence in his trial against him.

In view of that, I will give a further discount and reduce the sentence to 4 years and 9 months.