HKSAR V.Tung Hsin-hsien

HCCC6/2018

[2018] HKCFI 1132

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 6 OF 2018

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

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COURT:

The facts of this case were admitted in the Magistrates’ Court, when the defendant pleaded guilty to the charge; he has today confirmed his plea and the facts. In short, on 12 May 2017, the defendant, who was then aged 47, was searched at the Lo Wu Control Point, and two bags of almost equal amounts of this drug, commonly known as “Ice”, were found on him. The actual quantity, that is to say, the narcotic weight was 19.1 grammes in a slightly larger solid.

The defendant immediately admitted purchasing these drugs in Shenzhen for 1,800 renminbi. He said that these were for his own consumption and would last him for about three months. He, in fact, lives on the mainland, in Shenzhen, and works there as well, but he told the customs officers that he intended to stay a day in Hong Kong to have fun and was going to stay overnight in a hostel.

These drugs on the street in Hong Kong, at that time, were worth about $6,000. Now, it is perhaps not without significance that the defendant departed from Hong Kong that same day at 5.29 pm from Lok Ma Chau and was back in Hong Kong at 6.56 pm, at Lo Wu. The defendant is somebody who earns money because he works in the catering business, and seems to earn about $20,000 a month. It seems that he is able to support his habit of taking drugs which, at that time, was confirmed when he had a sample taken from him at Lai Chi Kok, which revealed the presence of amphetamine in his body.

The defendant has no criminal record in Hong Kong, but through his counsel, Mr Keung, the defendant very frankly admits that there have been minor blemishes, one in Taiwan, and one on the mainland, but these appear to have been small transgressions.

The charge in this case is one of trafficking only because the “Ice” was brought by the defendant across the border into Hong Kong from the mainland.

I am grateful to Miss Lilly Wong for her supply of various authorities to me, which help me to deal with this case, which might otherwise have been simply one of possession, had the drugs not come across the border.

The reality is that if it had been a possession case, there would probably have been quite a high element of latent risk for a drug quantity as high as this. As it is, this case deserves the full credit for a plea of guilty in good time, and an additional discount following the ruling by the Court of Appeal in HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121.

Before just dealing with sentence, I would just like to add that cases in the High Court which are as straightforward as this should be expected to be dealt with promptly. The delay in this case is inexcusable, and I hasten to add that neither counsel involved in the proceedings today are to be blamed for that.

The defendant had been entirely co-operative from the start, yet following his arrest on 12 May 2017, just over 11 months ago, I note the following. It took four months for the committal bundle to be served on 15 September 2017. After that, counsel then representing the defendant asked for six weeks for perusal, when one would have thought that a week would have been more than enough to consider the papers.

Not satisfied with six weeks, when the case came back before the court on 30 October 2017, defence counsel then representing the defendant requested a further five weeks for advice. Then on 4 December, when the case was back before the magistrate, defence counsel announced that a guilty plea would be offered, and it was then that the prosecutor requested four weeks for a Summary of Facts to be prepared, which should have been anticipated long before.

Then on 2 January this year, which was by then seven and a half months after the arrest, there was a committal to the High Court.

And even at this stage, with everything ready for a plea, it has taken three and a half months to list this case as a plea. No doubt court statistics showed that it was listed within three months of his committal, leaving out the fact that the defendant has almost been in custody by that stage for eight months.

It is not fair to keep defendants waiting so long to learn what their sentence should be. It reflects very badly on our system of justice in Hong Kong that the case is so grossly delayed by factors which could easily have been avoided, if only a sense of urgency was injected into the procedure.

In a case that I have just dealt with this morning, the delay is an even worse example than the present case. That case was HCCC 442/2017.

Mr Tung, would you please stand? I can only apologise to you that you have been kept waiting so long for your case to be listed. The mitigation that your counsel has placed before me has a lot of merit. First of all, for a case of this kind, the usual starting point would be in the order of 7 and a half years’ imprisonment after a contested trial. You pleaded guilty in good time, you will get your full one-third discount on that account alone. That reduces the sentence to 5 years, but I propose to give a further discount of 20 per cent in view of the mitigation advanced. The sentence, therefore, that you will serve is one of 4 years’ imprisonment.