HKSAR v. Fok Wing Fat

HCCC 21/2019

[2019] HKCFI 2112

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 21 OF 2019

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

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COURT:

The defendant has pleaded guilty to one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. Defendant, you have admitted unlawfully trafficking in 95.6 grammes of a solid containing 66.9 grammes of cocaine. This plea was entered before the Eastern Magistracy on 14 January 2019 and you were committed to the Court of First Instance for sentence.

The defendant was arrested on 19 April 2018 when the taxi he was driving was followed by unmarked police vehicles acting on information that that taxi was connected to drug-trafficking activities. The police started to follow the defendant’s taxi from Tonkin Street, Kowloon and could see that there was a male passenger in the rear of the taxi. Eventually it stopped near Tsing Yi Promenade and that male alighted. The police then followed the said taxi to Kwai Fong MTR Station to a taxi stand next to the bus terminus. The defendant’s taxi joined the taxi queue and at this point the operation turned overt, the said taxi was intercepted and the defendant, who was the driver, detained.

The taxi was searched and underneath the driver seat the police found a plastic bag containing four resealable plastic bags containing the drugs of this charge. The defendant was arrested and cautioned and under caution, he told the police that the drugs belonged to his last passenger, Ah Nam, and he was only responsible for driving the vehicle whilst Ah Nam distributed dangerous drugs.

In a subsequent video-recorded interview, the defendant was very frank and elaborated. He said that he had only met Ah Nam about one month earlier and they had made an arrangement that the defendant would pick him up several days a week on a regular basis. He soon realized that Ah Nam was using his vehicle to distribute drugs. They would drive to numerous locations as requested by Ah Nam where somebody would get into the taxi for Ah Nam to give them something. He realized that it was drugs that he was delivering on each occasion, even though he did not ask Ah Nam outright.

On the night of his arrest, he received a message at about 9 pm to pick up Ah Nam. When he picked him up, he saw that he was carrying a blue plastic bag with him when he boarded the taxi. He did not see where Ah Nam put that bag. He then went to several locations and delivered something to people who met his taxi on each occasion. The last stop was Tsing Yi where Ah Nam got out. He did not notice whether he was carrying anything when he got out of his taxi.

The defendant admits that even though he realized Ah Nam was selling drugs from his taxi or delivering drugs from his taxi, he was facilitating the deliveries. He did not stop because the fare paid to him was regular. It was more attractive to have such a regular fare as opposed to driving around, looking for customers.

He told the police that he had no knowledge of the bag and it belonged to Ah Nam. He now admits the bag was in his taxi and he knew that it contained dangerous drugs for the purposes of unlawful trafficking.

The defendant is now 51 years old and had a clear record. He was earning about $18,000 a month driving a taxi when he was arrested. He is married with a teenage daughter who is very supportive. I have been told that he is a family man. In 2017, he was in financial difficulty and was declared bankrupt. So when Ah Nam offered him this regular job, he found it attractive in order to try and get himself out of financial difficulty. He did it to try and continue to support his family. Other than the fare he received, he did not benefit from the sale of those dangerous drugs.

Defendant has written a mitigation letter, as has his wife. He admits he was foolish to turn a blind eye. He expresses genuine remorse. He is very sorry to have disappointed his family and his friends. His best mitigation is his plea of guilty and Ms Crebbin has said all she can say on his behalf today. It was, she agreed, and foolishness that led the defendant to commit this offence.

Trafficking in a dangerous drug is a very serious offence. On indictment, a person is liable to a maximum fine of $5 million and life imprisonment.

Sentencing guidelines for cocaine can be found in the authority of R v Lau Tak Ming [1990] 2 HKLR 370. Although the Lau Tak Ming involved trafficking heroin, the Court of Appeal has subsequently ruled that those guidelines are equally applicable to trafficking cocaine. The Court of Appeal have said where between 50 and 200 grammes is trafficked, a starting point of between 8 to 12 years would be appropriate. Mathematically speaking, trafficking in 66.9 grammes of cocaine would attract a starting point of 8 years and 5 months.

Defendant, please stand up. I have taken into account everything said on your behalf: your background, your previous clear record, mitigating letters, as well as the facts of this case. There is nothing in mitigation that carries significant weight in light of the seriousness of the offence and the quantity of cocaine. At the same time, I see no aggravating factors in this case. As I have already said, your plea of guilty is your best mitigation.

I will also take into account that at 50 years old you had no previous convictions. I will also accept that you were the driver for drug deliveries rather than the actual courier or mastermind. I find a starting point of 8 years appropriate. And since you have pleaded guilty at the earliest opportunity, you are entitled to the full discount of one-third for your plea. After that discount is applied, for this offence you are sentenced to 5 years and 4 months’ imprisonment. Do you understand that sentence?

ACCUSED: Yes.