HKSAR v. Fung Wai Lung and Another

HCCC 345/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NOS 345 OF 2016

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

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COURT:

The defendants face one joint count of trafficking in dangerous drugs. D1, Fung Wai-lung, pleaded guilty to the charge on the first day of trial. D2, Ngo Wai-kuen, pleaded not guilty. She was convicted after trial.

Particulars of the charge are that the defendants together, on 18 December 2015, unlawfully trafficked in 262.0 grammes of a crystalline solid containing 256.8 grammes of methamphetamine hydrochloride, commonly known as ‘ice’.

Summary of facts

In the evening of 18 December 2015, a packet of dangerous drugs was found by customs officers during a routine check conducted on the coach NC 8112 at Lok Ma Chau. The packet was hidden under one of the seats on the last row of the coach. It was left where it was found by the custom officers because they wanted to apprehend the person or people who had brought in the package from mainland China into Hong Kong.

Custom officers pretended to be passengers and sat on and next to the seat with the hidden packet underneath during the journey of the coach from Lok Ma Chau to Mong Kok. All the passengers got off of the coach after it arrived at Mong Kok with the packet still in the same place under the seat.

About 25 minutes after the coach had terminated in Mong Kok, the defendants returned to the coach station. D1 got back onto the coach. He lifted up the seat with the hidden packet underneath and retrieved the packet. When he turned around to leave, he was quickly subdued by customs officers who were waiting on the coach, again, pretending to be passengers.

The defendants were both on the coach when it started off in Huanggang, when it travelled the short distance from there to Lok Ma Chau, and when the coach journeyed from Lok Ma Chau to the terminus in Mong Kok.

The 2nd defendant, D2, was however not on the coach when D1, Mr Fung Wai-lung, went to retrieve the packet. D2 was standing on the pavement just outside the entrance of the coach.

The defendants were both charged with trafficking of the dangerous drugs in the packet. It is the prosecution’s case that the defendants committed the offence jointly. They say that D2 had said to D1 words indicating that she knew the packet was underneath the seat. D2, Miss Ngo Wai-kuen’s fingerprints were later found on the sticky side of some of the adhesive tapes wrapped around the packet.

At the time of D1, Mr Fung, entering his guilty plea, he refused to admit to committing the offence jointly with Ngo Wai-kuen. D1 specifically refused to admit to the part of the summary of facts, which was paragraph 4, last sentence, where it is stated that Ngo Wai-kuen said to D1, Fung Wai-lung, while on the coach, words indicating that Ngo Wai-kuen knew that the packet was underneath the seat where it was hidden.

The sentencing of D1 was adjourned to until the end of trial of Miss Ngo Wai-kuen. D1 gave evidence on behalf of the defence in D2’s trial, testifying that Ngo Wai-kuen never said those words and explained how he had picked up from the floor some tapes discarded by Ngo Wai-kuen and used them to wrap around the packet of drugs. Ngo Wai-kuen was found guilty after trial, indicating that the jury disbelieved D1’s evidence.

Subsequent to Ngo Wai-kuen’s conviction, D1 indicated through counsel, Mr Leung, and confirmed in court himself that he no longer wanted to dispute the relevant part of the summary of facts. The paragraph was read out to D1 again and he admitted to its contents. D1 is therefore sentenced on the basis that he committed the offence jointly with D2.

D1’s previous convictions

D1 has one previous conviction. He was convicted for one charge of trafficking in dangerous drugs on 23 December 2010 in the District Court and was sentenced to detention in the training centre. This is a spent conviction according to section 2 of the Rehabilitation of Offenders Ordinance, Cap 297, and will not be taken into consideration when deciding on the appropriate sentence.

D2’s previous convictions

D2 has a total of 12 convictions from 11 court appearances. Six of those are related to dangerous drugs. Of those six, two are for trafficking in dangerous drugs. Her last conviction for trafficking in dangerous drugs was in July 2004 when she was sentenced to 3 years and 4 months’ imprisonment. She was last released from prison on 5 February 2015 after serving a 22 months’ sentence for possession of dangerous drugs and failing to surrender to custody without reasonable cause.

During her remand in the present case, D2 was sentenced to detention in an addiction treatment centre for the offence of possession of dangerous drugs on 31 August 2016. Pursuant to section 6A(1)(b) of the Drug Addiction Treatment Centres Ordinance, Cap 244, should D2 be sentenced to imprisonment for a term of more than 9 months in the present case, this detention order shall cease to have effect.

D1’s mitigation

D1 is 24 and he was 22 at the time of the commission of the offence. Mr Leung for D1 told the court that it is the defendant’s case that one-third of all the ‘ice’ trafficked was for his self-consumption. I indicated to Mr Leung that I was inclined not to believe that assertion. I explained the basis for my inclination, which is that D1 had given evidence that was clearly inconsistent with the evidence of the other defence witnesses, suggesting that he had not been a credible witness.

The jury had, by implication of their conviction of D2, clearly disbelieved D1’s evidence that D2 had nothing to do with the packet containing the drugs. I invited Mr Leung to consider asking if D1 would like to choose to go into the witness-box to put forward his case. Mr Leung told me that he had taken specific instructions and D1 had decided he did not wish to go into the witness-box.

I then indicated to Mr Leung that while I am not prepared to accept that one-third of the drugs were for his self-consumption, I am of the view that some of the drugs were in fact for D1’s self-consumption. The reasons for that view are as follows. A small portion of the ‘ice’ seized were contained in a separate plastic bag which was taped to the outside of the cigarette box that contained the bulk of the 256.8 grammes of ‘ice’ and D1 was tested positive for amphetamine shortly after he was arrested for the present case. Mr Leung courteously noted my view but did not make further submissions on that.

D2’s mitigation

Mr Alex Ng, with his usual fairness, accepted that he could not put forward any meaningful mitigating factor. He agreed that a proper starting point would be 171 months’ imprisonment and that the sentence should be enhanced by 6 months for involving a cross-border element. He is also aware that the fact that this is the third conviction for trafficking in dangerous drugs for the 2nd defendant; it may be counted as an aggravating factor.

Sentence

The maximum sentence on conviction on indictment for trafficking in dangerous drugs is a fine of $5 million and imprisonment for life.

According to the case of HKSAR v Tam Yi Chun, the guideline tariff for trafficking of between 70 and 300 grammes of ‘ice’ is that of 11 to 15 years’ imprisonment.

According to the case of HKSAR v Chung Ping Kwan where the trafficking of ‘ice’ involved an international or cross-border element, the sentence should be enhanced. As a broad guideline for trafficking between 250 and 500 grammes of ‘ice’, the suggested level of enhancement is in the range of 6 months to 1 year.

The 1st defendant’s assertion of self-consumption

In the case of HKSAR v Wong Suet Hau, the Court of Appeal gave guidance on how to deal with situations where it is suggested in mitigation that, and I quote, “A significant proportion of the drugs was intended for” self-consumption and not for trafficking. I must look at all the circumstances in order to decide whether or not to accept the defendant’s contention that most of the ‘ice’ was for his self-consumption. I then set out paragraph 34 of the judgment, and I quote:

“Arising from these considerations:

(1) Where after a plea of guilty to trafficking in dangerous drugs it is suggested in mitigation that a significant proportion of the drugs was intended for the consumption of the defendant and not for trafficking, and where it is apparent from the circumstances as a whole that the contention, if true, may well make a difference to sentence, the sentencing court should address the issue.

(2) Having regard to the dangers of the abuse of this avenue of mitigation, the judge should look with the greatest care at all the surrounding circumstances in order to decide whether or not to accept the contention.

(3) In determining whether to accept the contention, the normal rules for determining the factual basis for sentence apply. The factors to be considered will include (a) the quantity of drugs, and, if known, their value; (b) the general circumstances, including how the drugs are wrapped and how many wraps or packets were found; (c) where the drugs have been discovered, whether at a residential address owned or rented in the trafficker’s own name or in someone else’s name, or whether they were being carried in a public place; (d) the presence of paraphernalia associated with drugs, including, on the one hand, items used for packaging, weighing and diluting drugs, and, on the other, items which are used for the consumption of drugs; (e) whether the defendant is an addict or is otherwise accepted to have been a habitual user of the drug in question; (f) the explanation given by the defendant following arrest; (g) the defendant’s general means and his ability to pay for his drugs otherwise than by trafficking in them; and (h) the defendant’s criminal record, if any, in relation to previous drug offences.

Usually a court will be able to determine the issues on these factors without a Newton hearing.”

In the case of HKSAR v Chow Chun Sang, the Court of Appeal is of the view that, and I quote:

“In drug trafficking cases, when all or part of the drugs are intended for the trafficker’s own consumption, the ensuing discount to the sentence should, depending on the circumstances, fall somewhere between 10 and 25 per cent of the basic starting point.”

In the case of HKSAR v Liu Ming Sze, that is CACC 103 of 2016, the Court of Appeal confirmed that the Chow Chun Sang range of 10 to 15 per cent discount will only be relevant after it is established that, and I quote, “a significant proportion” of the drugs involved were for self-consumption as stated in the case of Wong Suet Hau.

As mentioned above, despite the court’s invitation, D1 had chosen not to give evidence to put forward his case that one-third of the ‘ice’ were for his self-consumption. That being the case, I proceeded to examine D1’s one-third for self-consumption claim with the available evidence.

A very large quantity of ‘ice’ at 256.8 grammes was involved. Even at one-third that quantity, which is 85.6 grammes, it is still a very large quantity, a quantity so large that it would be highly unlikely that it would be for self-consumption.

The packaging of the drugs was such that the bulk of the drugs were separated from a small packet of ‘ice’ taped outside the cigarette box suggesting that only the smaller packet was for D1’s self-consumption. If D1 had intended for one-third of all the drugs to be for his own consumption, given the fact that the bulk of the drugs were in one single packet, he would have had to separate the drugs and take out his one-third. There is no reason for having a smaller packet taped on the outside. The only reasonable inference must be that the smaller packet was meant for D1’s self-consumption.

There were no paraphernalia found on D1 associated with the consumption of ‘ice’. There is no evidence that such paraphernalia were found in D1’s home. Furthermore, D1 had never been convicted of a possession of dangerous drug offence or an offence relating to the usage of dangerous drugs in the past six years, indicating that it is unlikely that he is an addict, and even more unlikely that he is such a serious addict as to require 85.6 grammes of ‘ice’ for his self-consumption.

D1 was working as an air-conditioner technician earning around $15,000. It is unlikely that he would be able to purchase this much ‘ice’ on that kind of earnings otherwise than by trafficking in them.

As I had indicated earlier, I am prepared to, and do, find that the small plastic bag of ‘ice’ that was attached to the outside of the cigarette box were possibly for D1’s self-consumption. I find, however, that since this small plastic bag contained just 10.8 grammes of ‘ice’, being 4.2 per cent of the total seized, it did not amount to a significant proportion of the trafficked drugs and the suggested range of discounts set out in Chow Chun Sang is not relevant.

Furthermore, given the small quantity and the fact that possession of that quantity of ‘ice’ would still carry its own punishment, I find that there is no practical difference between sentencing on the basis that all the ‘ice’ were for trafficking and on the basis that 10.8 grammes were for D1’s self-consumption.

The starting point for both defendants

A simple arithmetical application of the guideline tariffs to 256.8 grammes of ‘ice’ would lead to a starting point of 171 months’ imprisonment. This is the starting point that I adopt in relation to both defendants.

Importation as an aggravating factor for both defendants

For the aggravating factor of the drugs being brought across the border from mainland China into Hong Kong, I will enhance the sentence by 6 months, leading to a sentence of 177 months’ imprisonment.

Previous conviction as an aggravating factor

D1

In relation to D1, as I had mentioned above, his previous conviction for trafficking in dangerous drugs is a spent conviction. As such, it should not affect D1’s sentence.

D2

As for D2, I find that although her last conviction for trafficking in dangerous drugs was in 2004 and the commission of the present offence in December 2015, this is still her third conviction for a similar offence and as such should be treated as an aggravating factor.

It is trite law that the sentence for an offender with similar previous convictions may need to be enhanced in order to deter and protect, and I quote:

“There are many examples of this kind to be made and trafficking in dangerous drugs is certainly no exception. If indeed there are any exceptions to the general rule that reoffending in the same or in similar way may aggravate the offence, at least so far as sentence is concerned, this will have the result that the starting point which would have been adopted for a man of good character will sometimes need to be increased to take into account the aggravating features of persistence and the failure of previous sentences to deter on the one hand, and the court’s duty to protect the public on the other. The court in other words is passing a deterrent sentence on the persistent offender from whom the public needs protection, which is often unnecessary on the first or even sometimes a second-time offender. Much may depend on the gravity of the crime. The graver the crime, the more obvious becomes the need for a deterrent sentence on repetition in order that the public are properly protected.”

The above passage is taken from the case of HKSAR v Chan Pui Chi where the applicant was sentenced to 14 years’ imprisonment for trafficking in 260.77 grammes of heroin hydrochloride. There the court found that a sentence of 13 years’ imprisonment would have been more appropriate for the quantity of drugs but refused to disturb the sentence after acknowledging that the trial judge was entitled to take into consideration the criminal record of the applicant. There, the applicant had 22 previous convictions and had previously, in 1988 and 1992, been sentenced respectively to 5 years and 6 and a half years’ imprisonment for trafficking in dangerous drugs. His criminal record showed several other drug-related offences including others for trafficking. The enhancement applied in Chan Pui Chi was therefore 12 months’ imprisonment or around 7.7 per cent.

In our present case, this is D2’s third conviction for trafficking in dangerous drugs. There is however a time lapse of some 11 years between the last and the present conviction. In order to achieve the desired deterrent and protection effect, I find that D2’s sentence should be enhanced by a further 6 months’ imprisonment. This would lead to a sentence of 183 months’ imprisonment for D2.

Joint enterprise

The defendants had committed the offence jointly. The fact that Ngo Wai-kuen, D2’s fingerprints were found on the adhesive tapes proves that she was very much involved in the preparation of the packet for importation into Hong Kong. I find the defendants equally culpable in the commission of the present offence.

I consider, however, that the sentence to be imposed on them is sufficient to reflect their individual culpability and there should not be a further enhancement of the sentence on the basis that the offence was committed by more than one person.

Final sentence

D1, Fung Wai-lung, is sentenced to 118 months’ imprisonment or 9 years and 10 months’ imprisonment after granting him the full one-third discount for his plea of guilty.

The 2nd defendant, Ngo Wai-kuen Lai Lai, is sentenced to 183 months’ imprisonment or 15 years and 3 months’ imprisonment. The 2nd defendant’s drug addiction treatment centre’s detention order imposed on 31 August 2016 shall cease to have effect.