HKSAR v. or King Fung and Another

HCCC 45/2019 & HCCC 46/2019

(Heard together)

[2019] HKCFI 2237

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NOS 45 & 46 OF 2019

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT: In these reasons for sentence, I shall deal with cases numbered HCCC 45 and 46/2019 together as they are connected, and I shall refer to defendant Or King-fung as the 1st defendant and Wong Tsz-ming as the 2nd defendant. Counsel on fiat, Mr Hingorani, counsel for the 1st defendant, Ms Annie Lai, and counsel for the 2nd defendant, Mr Ching Wan-fung, have no objection to the defendants to be sentenced together.

Let me deal first though with HCCC 46 which is the 1st defendant, Or King-fung. On 18 February 2019, the 1st defendant pleaded guilty to a charge of trafficking in a dangerous drug before a magistrate at the Eastern Magistracy. He also admitted the facts as were read to him at that time to be correct. As a result of his plea of guilty, he was committed to the Court of First Instance for sentence. I confirmed his plea of guilty on 16 July 2019.

The 1st defendant and the 2nd defendant had faced another charge of manufacturing dangerous drugs in HCCC 45/2019. They were committed to the High Court for trial on that charge. Therefore the 1st defendant’s sentence in HCCC 46 was adjourned to the conclusion of that trial. After the conclusion of that trial, the jury found both the 1st and 2nd defendant, Wong Tsz-ming, not guilty of manufacturing of a dangerous drug.

The 2nd defendant, Wong Tsz-ming, had, however, pleaded guilty to the alternative charge of trafficking in a dangerous drug. It is confirmed and agreed between Mr Hingorani and Mr Ching and it is on the court record at the committal stage that the 2nd defendant had indicated that he would plead guilty to the alternative charge of trafficking in a dangerous drug on 18 February 2019.

Upon his arraignment to the manufacturing of a dangerous drug before myself, he formally entered his plea of guilty of which the prosecution did not accept. After trial, however, the jury found the defendant guilty of the alternative charge of trafficking in a dangerous drug. I am here therefore to deal with sentence of the 1st defendant to trafficking in 71.5 grammes of a solid containing 67 grammes of cocaine, and for the 2nd defendant, on trafficking in 1,183.50 grammes of a solid containing 1,074.89 grammes of cocaine.

In respect of the date of commission and place of the charge, both defendants have admitted to committing the trafficking offence on 12 February 2018 at On Keung Building, No 51-65 Hong Keung Street, San Po Kong, Kowloon.

The drugs of which the 1st defendant has pleaded guilty to, however, was found on his person, and the drugs to which the 2nd defendant pleaded guilty to was found in premises known as 51B or Room B on the 7th floor of On Keung Building.

I shall now turn to the facts of the case. On 12 February 2018, a team of police officers were conducting an anti‑dangerous-drugs operation at On Keung Building. At about 7.49 pm, the 1st defendant was seen to come out from Flat 51. The observing a police officer reported this to his colleague, the defendant was then intercepted on the staircase near the 3rd floor of the building. He was found to be carrying the drugs as stated in the charge in his jacket pocket. He was arrested and cautioned and under caution, he admitted that he picked up the cocaine outside the electric box of the 7th floor of the building as he was instructed by a friend in order to deliver them to others for a reward.

In the meantime, at about 7.52 pm, the police officers, armed with a search warrant, broke into and entered Room B that is within Flat 51 which is a subdivided unit on the 7th floor. Inside Room B at the time were three males. That is the 2nd defendant and two others known as Mok Shu‑piu and Chow Kai-yip.

The police officers conducted a search in Room B and the cocaine, as I indicated earlier, was found in the premises. Apart from the cocaine, manufacturing paraphernalia such as bicarbonate soda, electronic scales, a sealing machine, a bowl, spoons, pots, a pair of forceps, a gas stove and wads of transparent resealable plastic bags were found.

After analysis by government chemists, traces of cocaine were found in the range hood filter and the air-conditioning filter. It was not in dispute at the trial, either by the 1st or 2nd defendant, that cocaine was being manufactured in Room B. That is, the government chemist opined that the manufacturing method used was a common way of making crack cocaine and that the paraphernalia seized had also been used to process cocaine. Clearly, however, the jury found that neither the 1st or 2nd defendant were involved in the manufacturing of crack cocaine but, as I mentioned earlier, they did find upon the 2nd defendant’s admission that he had trafficked in all the drugs in the room.

I turn now to the personal particulars, background of the 1st defendant. 1st defendant, Or King-fung, is 23 years old and is of clear record. He received education up to Form 4 level. His parents divorced in 2018 and before his remand, he lived in a public housing unit in Wong Tai Sin together with his father and elder sister. The 1st defendant worked as a waiter in a restaurant, however, became unemployed since 2016 and at the time of the offence, he was therefore unemployed. The 1st defendant, I am informed by Ms Lai, started taking cocaine since November 2017.

In his mitigation, Ms Lai informed the court that during the 1st defendant’s unemployment, he was financed by his father. However, his father met with an industrial accident in January 2018 and was hospitalized for about a month after his operation until around the date of the offence. In these circumstances, the 1st defendant involved himself with this serious offence of trafficking.

I turn now to the 2nd defendant, Wong Tsz-ming. He is 23 years of age -- sorry may I just say for the 1st defendant, he is of clear record. The 2nd defendant is 24 years of age and is single. He is of clear record. He has been educated up to Form 4 level. He had worked as a decoration worker and a broadband technician. He had become unemployed since January 2017. Defendant had lived in On Keung Building on the 5th floor before his arrest.

It was admitted at the trial that the 2nd defendant was in fact the tenant of Room B, the premises in question, which was approximately two floors above where he resided with his mother. The defendant had explained at trial that it was another person who persuaded him to enter into the tenancy on the other’s behalf and it was not him who was the occupier but the other person. He had admitted that it was the other person who had given him keys so that he had access to go into the premises to traffic in the drugs in the premises. Mr Ching, for the 2nd defendant, gave the reason for the defendant’s commission of this offence was due to financial difficulties.

Both Ms Lai and Mr Ching had informed me today that the defendants have offered their assistance to the prosecution. However, it is in agreement with them that this matter can be taken into account if it comes to any fruition and is constructive after I sentence the defendants today.

As the defendants have been advised, the offence of trafficking is a very serious offence. They both have clear records and appear to have become involved in this offence as a result of financial difficulties. Given the seriousness of this offence, these mitigating factors, however, do not carry any weight. The strongest mitigating factor for both defendants is their plea of guilty at the earliest opportunity, and for that I shall award them both the full one-third discount from the starting point.

The defendants had both admitted to trafficking in the dangerous drug cocaine, and the relevant cases for trafficking in cocaine are that of Lau Tak Ming and Abdallah.

For the 1st defendant, you had trafficked in 67 grammes of cocaine. Had you been convicted after trial, an appropriate starting point would be one of 8 years and 3 months’ imprisonment. Giving you full credit for your plea of guilty, I shall reduce that term to one of 5 years and 6 months’ imprisonment to which you shall be so sentenced.

For the 2nd defendant, you had trafficked in 1,074.89 grammes of cocaine. Had you been convicted after trial, an appropriate starting point would have been one of 22 years and 3 months’ imprisonment. Giving you full credit for your plea of guilty, that term shall be reduced to one of 14 years and 10 months’ imprisonment to which you shall be so sentenced.