HKSAR v. Ho Fai

HCCC 173/2019

[2019] HKCFI 2787

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 173 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 charge of trafficking in dangerous drugs. He pleaded in Eastern Magistracy and was committed to the Court of First Instance for sentence on 27 May 2019.

The facts are straightforward. The defendant was stopped and searched on 24 January 2003 in the early evening by police officers because he was acting suspiciously. Upon a search, the police found three plastic bags containing a total of 83.12 grammes of a mixture containing 72.09 grammes of heroin hydrochloride. They found the three bags of drugs in the left pocket of the defendant’s jacket.

Under caution, he confessed that he had bought the heroin for his own consumption. He later admitted that he had bought the white powder, the heroin, for $21,000 and was going to hide it somewhere in the building at 66 Parkes Street where he was arrested. He had recently won money at the races and Chinese New Year was approaching so he bought a large amount of heroin.

He was released on police bail but he failed to report to the police station as appointed on 7 March 2003. Immigration records showed that the defendant had left Hong Kong via Lowu on 5 March 2003. He was re-arrested when he entered Hong Kong on 31 October 2018 at about 3:20 in the afternoon.

In a subsequent interview under caution, he confessed that he had fled to mainland China in March 2003 because he was afraid to face a term of imprisonment and now returned 15 years later to face his punishment. The defendant now admits and accepts that at all material times he had possessed the heroin for the purposes of unlawful trafficking.

The estimated street value of that amount of heroin at the material time was just over $40,000.

I have heard and read mitigation put forward on behalf of the defendant. He was born in mainland China in May 1954 and emigrated to Hong Kong in 1972. At the time of his arrest, he was 49 years old and worked as a decoration worker earning a few thousand dollars a month. He is now 65, retired and surviving on family financial support.

The defendant is not a man with a clear record. He does have seven previous court appearances but none of his convictions related to dangerous drugs. His last conviction was in 1995 where he was sentenced to 10 years’ imprisonment for robbery and possession of a firearm. His best mitigation in this case is his plea of guilty.

I have been told in mitigation that he did flee Hong Kong in March 2003 but then subsequently served a 9-year term of imprisonment in a Dongguan prison. He says he was released in August 2018, a couple of months before he returned to Hong Kong. I will accept that he did serve, whilst away for 15 years in the mainland, a 9-year term of imprisonment.

Ms Wong has said all she can say on behalf of the defendant. Trafficking in a dangerous drug is a serious offence. On conviction on indictment, a person is liable to a fine of up to $5 million and to imprisonment for life. The Court of Appeal authority R v Lau Tak Ming and Others [1990] 2 HKLR 370 sets out the Court of Appeal guidelines for trafficking in heroin. In that authority, it provides that where between 50 to 200 grammes is trafficked, then a starting point of between 8 to 12 years’ imprisonment is appropriate. Mathematically speaking, trafficking in 72.09 grammes of heroin would attract a starting point of 8 years and 7 months.

Defendant, please stand up. I have considered the facts of this case, the quantity of the heroin as well as all the mitigation put forward on your behalf. Your plea does come some 15 years after your arrest and that is because you fled Hong Kong. Ms Wong has asked me to nonetheless consider the fact that as you have pleaded guilty as soon as the charge was put to you and asked that you be afforded the full one‑third discount. I have been referred to by prosecution to the case of HKSAR v Kwan Po Keung [2012] 2 HKLRD 12 where that appellant absconded and jumped court bail, the Court of Appeal felt he should not have been afforded a full one‑third discount.

In this case, I will take into account that you did not jump court bail but police bail and that for a large period of that time you were incarcerated in a prison in Dongguan. As you did plead guilty at the earliest opportunity after you returned, I will afford you, under such circumstances, the full discount.

I will take a starting point of 8 years and 7 months. After applying the full discount, I round the sentence down to 5 years and 8 months’ imprisonment. Do you understand that sentence?

ACCUSED: Yes.