HKSAR v. Fung Chung Fai

DCCC 809/2018

[2019] HKDC 214

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 809 OF 2018

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REASONS FOR SENTENCE

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1.The defendant, a 24-year-old man, admitted to trafficking in 8.97 grams of cocaine to Macau.

2.On the night of 30 May 2018, when the defendant was about to take the 11:30 ferry to Macau, he was stopped by customs officers at the Departure Hall, Macau Ferry Terminal, Sheung Wan for a search as the ion scan check on his belongings showing positive on drugs.

3.Customs officers found the drugs in this case (11 grams of a solid containing 8.97 grams of cocaine) in his shoulder bag which were put in 60 small plastic bags.

4.He was arrested and under caution, he told the officers that he was bringing the drugs to Macau for a reward of $2,000.

5.The defendant also told the officers that he had been on “ice” for about 10 years. Urine tests conducted on him after he was taken into custody show positive on “amphetamine” and “benzodiazepine”.

6.The street value of the drugs is estimated to be about $12,000.

7.The defendant has amassed 6 prior convictions over a period of 5 years from 2011 to 2016, two of them are drug-related. In fact, his first conviction in 2011 is drug trafficking for which he was sent to Training Centre. His last conviction in 2016 is for 3 offences, using another’s ID card, possession of offensive weapon as well as assaulting police officer, for which he was given a rather long prison term.

8.The defendant, single, lives with parents and two brothers – one of them is his twin brother. At the time of offence, he was working in a hospital laundry. The whole family including defendant’s girlfriend are in court today to show concern and support for him.

9.Counsel for the defendant stressed that the defendant had been very cooperative with the law enforcement after his arrest and made frank and full admissions, he feels genuinely remorseful for what he did, and would take full responsibility for his behaviour.

10.In his written mitigation, counsel said that the defendant has been using ice for about 10 years and 10 out of the 60 bags of cocaine were in fact for personal use. Today, however, counsel informed the court that the defendant no longer relies on such ground for a reduction in sentence.

11.The sentencing guideline for trafficking up to 10 grams of cocaine is 2 to 5 years. In view of the amount the defendant was trafficking (8.97 grams), I take 56 months as starting point.

12.Additionally, the fact that the defendant was trafficking drugs out of Hong Kong is an aggravating feature, the sentence should be increased to reflect the international element of trafficking.

13.In Chung Ping Kun CACC 85/2014 (a case dealing with ice), the Appellate Court made the following suggestion:-

14.In a more recent case (Chan Ka-yiu CACC 147/2016), the Appellate Court had another chance to deal with the question of enhancement for trafficking in drugs across the border, this time the drug is ketamine, the suggestion is as follows:-

15.Turning to the present case, though we are dealing with a different drug (cocaine), I would think the rationale and scale of enhancement as stipulated in the above cases do apply.  Given the facts of the present case, I would add 3 months on top for this ground which takes the starting point up to 59 months.

16.The only substantial mitigation in the case is the defendant’s guilty plea which is timely, the starting point is reduced to 39 months after deducting 1/3. There being no other reason for further reduction, the defendant is therefore sentenced to 39 months’ imprisonment.