HKSAR v. Wan Tin Fu

HCCC 442/2017

[2018] HKCFI 1131

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 442 OF 2017

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

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COURT:

On 3 December 2016, the police arrested the defendant who was then aged 33. He was found at his flat in Tai Kok Tsui, where he was found in possession of 231 grammes of a solid containing 172.9 grammes of cocaine. The street value of these drugs was $236,668.

The defendant has never denied having possession of the drugs. He emphasised to the police, to his credit, that the two other occupants of the flat had no knowledge of his drugs, and he went on to admit that he had been, or was going to, sell cocaine.

Well, nothing could be more straightforward. Yet, as I was pointing out to counsel just now, this has taken 16 and a half months before being put before a court, as a plea of guilty.

It goes almost without saying that this case ought to have been disposed of long ago. The papers revealed that on 5 December 2016, the prosecutor applied for a 2 month adjournment for a Government Chemist Certificate. There can be no complaint with that, but on the record, as you’ve shown, the next application for an adjournment again came from the prosecution, on 18 April 2017, when six weeks were asked for, in order to prepare the bundle. This case hardly needed to be prepared for trial, as it was very unlikely to be a trial, but it’s after that that the real delays begin to come in.

On 29 May 2017, the defence requested six weeks to peruse the papers.

On 10 July 2017, the defence applied for a further seven weeks to peruse the papers.

On 28 August 2017, the defence requested a further four weeks in regard to further documents.

On 25 September 2017, the defence asked for a further six weeks in regard to further documents.

Essentially, the papers in this case required no more than an hour to peruse, and where four to seven weeks were requested, a single week would have been ample.

On 4 December 2017, which was now almost exactly to the day, a year after the defendant told the police that he was trafficking, counsel for the defence said that the defendant would plead guilty. So the defendant was committed to this court, and despite all the previous delays, it has taken this court four and a half months to list this case for plea. It is apparent that there is absolutely no sense of urgency in the system, which is unfair to defendants who are left so long not knowing their fate. It is also a poor reflection of the standard of justice in Hong Kong that delays of this kind are tolerated.

And to the case which I am about to deal with, HCCC 6/2018, a similar long delay in a simple and straightforward case is encountered.

As the defendant in this case will no doubt have been advised, sentencing guidelines for heroin and cocaine are set out in the R v Lau Tak Ming & Others [1990] 2 HKLR 370. These guidelines provide that for 50 to 200 grammes of cocaine, the sentencing band is from 8 to 12 years’ imprisonment after trial. Here, the amount is 172.9 grammes, for which in my judgment, a sentence of 11 years’ imprisonment would have been appropriate.

The defendant is due full credit for his timely plea of guilty.

Mr Wan, would you stand, please?

Ignoring the previous conviction that you had for trafficking so many years ago, giving you full credit for your plea of guilty, your sentence is that you go to prison for 7 years and 4 months.