HKSAR v. Fang Gencheng

HCCC 257/2020

[2023] HKCFI 1140

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 257 OF 2020

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BETWEEN

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty before the Eastern Magistrate’s Court on 27 October 2020 to one count of trafficking in 9,741 g of methamphetamine hydrochloride contrary to S4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134. The street value of those drugs at that time was HKD5.7 million. Subsequent to that plea, the defendant sought to make an application to reverse his plea which was unsuccessful. He now falls to be sentenced.

2.On 19 April 2019, Customs & Excise intercepted an inbound parcel from the USA, which was found to contain 9,741 g of ICE.  On 23 April C&E attempted to deliver the parcel to a logistics company.  A member of staff of that logistics company assisted in a controlled delivery to the defendant. Under arrest and caution the defendant told the Customs & Excise officers that he was helping someone called “Ah Gor” to collect the parcel but did not know what it contained.  He was to receive a RMB10,000 reward for doing so. The defendant agreed to assist in a further controlled delivery as he had been instructed to take the parcel to the Shatin Regal Hotel.  However, the defendant was not completely honest with C&E in his efforts to assist and deliberately ignored calls from a person called Lo Ka during the period of the operation until someone called Ah Gor messaged to ask him why he had not answered those calls.  It was only at this point that the defendant accepted Lo Ka was involved with the parcel and that Lo Ka had been the person who had introduced him to Ah Gor.  When Lo Ka eventually contacted the defendant by phone, the defendant spoke in an unintelligible local dialect (now known to be Hakka), which the officers could not understand and thereafter no further contact was made by either Ah Gor or Lo Ka and Ah Gor exited the Wechat list. It is therefore clear that the defendant deliberately assisted his criminal colleagues and sought to pervert the course of justice.  However, he is not being dealt with for that before me.  He is being dealt with for the part he played in collecting a parcel, which contained dangerous drugs.  In the later VRI, he was not any more helpful.  Whilst a defendant has a right to silence at all times, it does mean the Court has no evidence to assess his true role from the defendant’s perspective and given his earlier dishonesty with C&E, I intend to place no weight upon it.

3.Mr Mughal, who represented you for the reversal of plea application, and who should have been representing you for sentence, has informed the Court that you wish to dispense with his services.  I have canvassed that with you and explained that it would be wise to retain his services but you do not wish to do so.

4.The antecedent statement indicates that the defendant is now 31 years of age and lives in the PRC.  He is married with one child.  In evidence he maintained that he was employed as a hair stylist.

5.The relevant sentencing guideline for the offence of trafficking in over 4,000g of ICE is HKSAR v Abdallah [2009] 2 HKLRD 437.  For trafficking in between 4000 g to 15000 g of ICE the sentencing range is between 26-30 years.  For trafficking in 9,741kg of ICE, the correct starting point after trial is 28 years’ imprisonment.

6.Miss Chan, who represents the prosecution today, has indicated that in all the circumstances of this case, the prosecution does not to seek to ask the Court to enhance that sentence for the aggravating feature that these drugs were imported into Hong Kong and I will not do so. However, prosecuting counsel has drawn the Court’s attention to HKSAR v Tang Yiu-cheong HCCC 324/2020, in which Madame Justice Toh reduced the discount afforded to a defendant to 25% by reason of the time and expense taken up with an unsuccessful reversal of plea.  I have explained that aggravating feature to the defendant and he accepted that previous counsel had explained the risk of losing part of the one third discount for early plea if he were to be unsuccessful in his application to reverse plea, which he was.  I have given the defendant an opportunity to address the Court on whether I should follow that course but the defendant does not wish to do so.  Given the considerable amount of time taken up with this issue both by the Department of Legal Aid, the Department of Justice and by the Judiciary as indicated in my earlier Decision, I see no reason why I should not follow the reasoning of Madame Justice Toh in Tang Yiu-cheong and reduce the discount for your plea of guilty to 25%.

7.On Count One, for trafficking in 9,741g of ICE by collecting a parcel from the USA at the instructions of Ah Gor and Lo Ka, with the intent to deliver it to the Shatin Regal Hotel, you will go to prison for 21 years.

Ms Chan Sze Yan, SPP, of the Department of Justice, for the HKSAR

Mr Hanif Mughal, instructed by Messrs Ernest Tang, assigned by the Director of Legal Aid, for the defendant

The defendant acting in person (for Sentence)