HKSAR v. Fung Kin Ping, Seco

HCCC 266/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 266 OF 2017

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

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COURT:

The defendant has been convicted on her own plea of one charge of trafficking in a dangerous drug. The guilty plea was entered at the Eastern Magistrates’ Court on 7 August 2017.

The Particulars of Offence provide that on 22 November 2016, at Un Chau Street, Sham Shui Po, Kowloon, in Hong Kong, the defendant unlawfully trafficked in a dangerous drug, namely 59.0 grammes of a solid containing 53.8 grammes of cocaine.

The Summary of Facts which has been admitted by the defendant provides that on 22 November 2016, at 0015 hours, a private vehicle was parked on Un Chau Street, Sham Shui Po, Kowloon, in Hong Kong. A male was sitting in the driver’s seat whilst the defendant was sitting at the rear passenger seat. The vehicle was stationary. The defendant and the male remained inside the vehicle.

At 0020 hours, police officers displayed their police identity cards and demanded the defendant and the male to step out of the vehicle for a search. The defendant got off the vehicle. She had with her a handbag containing inter alia:

(1) One plastic bag containing 23.9 grammes of a solid containing 21.9 grammes of cocaine.

(2) One plastic bag containing 23.9 grammes of a solid containing 21.8 grammes of cocaine.

(3) Two plastic bags containing 54 plastic bags containing a total of 11.2 grammes of a solid containing 10.1 grammes of cocaine.

Arrested and cautioned, the defendant said the “Coke” belonged to her and had nothing to do with the male. At the time the defendant had with her three mobile phones and a Samsung notepad.

In a subsequent cautioned video-recorded interview, the defendant said she was helping her friend ‘Ah B’ to deliver the dangerous drug to Un Chau Estate for a reward of $800 which she had not yet received. She said she was a part-time worker in a garage. She said the male in the vehicle was her boyfriend and had nothing to do with this case.

As in November 2016, in Hong Kong, the cocaine had a retail value of around HK$65,000.

The defendant now admits she was at the time unlawfully trafficking in the cocaine.

By way of personal background, the defendant is 32 years of age. She was born in Hong Kong in July 1985. She has received education up to Secondary Form 2 in Hong Kong. At the time of her arrest, she was a part-time staff of a car beauty shop, earning around $9,000 per month. She has a 6-year-old son. She is single.

The defendant has four previous criminal convictions, none of which concerned dangerous drugs.

By way of mitigation, Mr Woon submitted, on behalf of the defendant, that the defendant had no previous convictions for dangerous drug offence, but clearly that cannot entitle the defendant to any discount in sentence. I am told that she met “Ah B” referred to in the Admitted Facts a few months before committing the present offence. He became aware that the defendant needed money and asked the defendant to carry the dangerous drug in question for him.

A mitigation letter written by the defendant has been handed up to the court, the contents of which has been duly noted. However, as has been pointed out by the courts on many previous occasions, personal and family circumstances will offer little mitigation in cases of drug trafficking, which calls for deterrent sentences in order to protect the public.

The defendant has pleaded guilty to one charge of trafficking in a dangerous drug. The drug involved is 59.0 grammes of a solid containing 53.8 grammes of cocaine. In this jurisdiction, sentencing for trafficking in cocaine is align to the guidelines for trafficking in heroin contained in R v Lau Tak Ming [1990] 2 HKLR 370.

In the present case, the narcotic involved is 53.8 grammes of cocaine. 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 should be 8 years’ imprisonment.

I do not regard it appropriate to increase the starting point on account of the fact that she was on police bail for some unrelated traffic offences.

I shall give the defendant the full one-third discount, for her guilty plea, which was entered in the Magistrates’ Court on the first opportunity.

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