HKSAR v. Fu Man Sing

HCCC 120/2023

[2023] HKCFI 3334

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 120 OF 2023

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

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COURT: The defendant is charged with one count of trafficking in a dangerous drug, namely, 13.4 grammes of a crystalline solid containing 13.4 grammes of methamphetamine hydrochloride, commonly known as ‘Ice’. He pleaded guilty to the charge before the magistrate at the committal proceedings and was committed to the Court of First Instance for sentence. He appeared before me today having confirmed his plea of guilty and his admission to the Summary of Facts, I formally convict him the offence.

The facts giving rise to the charge are as follows.

At around 7.15 pm on 23 January 2022, a team of uniformed police officers were patrolling in the vicinity of Yau Ma Tei when one of the officers saw the defendant running near the junction of Nanking Street and Woosung Street. The defendant was observed to behave in a nervous manner.

The officer approached the defendant for investigation and upon a search, the officer found something protruding from the defendant’s jeans below his abdomen. He was taken to a spot nearby for a search of his body to be conducted. Police found that the defendant was, at the time, wearing an extra pair of sports pants under his jeans and there was found tissue paper with a plastic bag therein containing the ‘Ice’, the subject of the charge. The officer arrested the defendant for trafficking in a dangerous drug.

Under caution, the defendant claimed that the drugs were for his own consumption.

In a subsequent video-recorded interview, the defendant said under caution that he was jobless at the time of the arrest and living in a public housing estate in Tin Shui Wai. He claimed that, at the time, he was looking for a friend to play in an amusement game centre nearby Nanking Street. He said he put the drugs in his underpants because he said it would not be easy for the police to find out even if he was intercepted.

He said he consumed ‘Ice’ daily up to a quantity of about 1.75 grammes and that he purchased the subject ‘Ice’ in Yau Ma Tei at around 6 pm on 22 January 2022 for the sum of $3,000. He claimed that he had since put the drugs inside his underpants all along before he was arrested. When the police asked him why he had put the drugs in his underpants for such a long period of time, from 22 to 23 January 2022, he did not respond. Now, before me, the defendant accepts that he was trafficking in the whole lot of drugs at the time of the offence. And on his behalf, Ms Wong confirms that the defendant is not relying on self-consumption as a mitigating factor.

Defendant’s Background

Defendant is now 35 years old. He was born in Hong Kong and was educated up to Form 2. At the time of the arrest, he was unemployed, living with his mother in a public housing estate unit. He had several casual works and he said he used to earn around HK$600 a day.

The defendant has a string of criminal records. He obviously had a wayward and troubled teenage life and has been involved in a range of offences since he was 16, including triad-related offence, robbery, theft and possession of dangerous drugs. He was initially sentenced to a probation order for 15 months for a second possession of dangerous drugs conviction in April 2018, for which probation order he breached and was sent to the Drug Addiction Treatment Centre. He was last discharged from incarceration on 18 November 2020.

And on 26 November 2021, he was convicted and sentenced to 14 days of imprisonment, suspended for 2 years, in respect of an offence of criminal damage and another offence of common assault. This is the history of the defendant’s wayward life in terms of his criminal convictions. It is said in mitigation that the defendant is now no longer a drug addict after the treatment in the Drug Addiction Treatment Centre from which he was discharged in 2020.

In mitigation, Ms Wong asked me not to aggravate the sentence on account of the defendant’s criminal record. Ms Wong highlighted the fact that none of the previous offences are related to trafficking in dangerous drugs. Ms Wong fairly accepts that in connection with the suspended sentence of 14 days in relation to the defendant’s last conviction for criminal damage and common assault, the court is in a position to activate that suspended sentence given that the present offence of trafficking was committed less than two months, namely, on 23 January 2022, of the imposition of that suspended sentence on 26 November 2021.

Sentencing Considerations

The approach in relation to sentencing drug trafficking offences has been set out in HKSAR v Herry Jane Yusuph, reported [2021] 1 HKLRD 290, involving a six-step approach.

The first step requires the court to assess the gravity of the offence by looking at the type and quantity of the drugs in question. The drug here is ‘Ice’. The tariff for sentencing of trafficking in ‘Ice’ is set out in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. The tariff stipulates that for a quantity of ‘Ice’ between 10 and 70 grammes of ‘Ice’, a starting point of between 7 and 11 years of imprisonment is appropriate.

And for the amount involved in the present case, namely, 13.4 grammes of ‘Ice’, a starting point of 7 years and 3 months’ imprisonment is appropriate on a strict mathematical calculation. And I accept in the circumstances of this case that there is no indication that the defendant has assumed a role more severe than that of a mere courier. And as such, I will not enhance his sentence on account of his role.

Aggravating Factors

The next step in the six-step approach requires the court to consider the presence or otherwise of any aggravating factors. I have already outlined the criminal records of the defendant. And taking into account the mitigations as advanced by Ms Wong on the defendant’s behalf, in particular, the explanation for the criminal records set out by Ms Wong in her mitigation, I am prepared not to treat the defendant’s criminal record as an aggravating factor requiring an enhancement of the sentence.

It is true that the defendant appears to me to have not yet changed his ways. However, I do accept Ms Wong’s submission that this is the first time that the defendant has committed a trafficking in dangerous drugs offence and it is on this basis alone that I will not consider any enhancement on account of his previous criminal record. But, the defendant is warned that this would become an aggravating feature if he is not going to change his ways and commits a further offence of such nature.

Mitigating Factors

The strongest and perhaps the only real mitigating factor is the fact that the defendant pleaded guilty at the earliest opportunity. And for that, I am prepared to give him the full one-third discount in accordance with the well-established sentencing approach set out in HKSAR v Ngo Van Nam. This would bring the sentence to 58 months. In other words, 4 years and 10 months’ imprisonment. And it is accepted by Ms Wong that the defendant is not asserting self-consumption as a mitigation. There is no other mitigating factor that would justify a further reduction of the sentence.

The final step of the six-step approach requires the court to step back and look at the overall sentence to see if it is fair and just. Having considered all the circumstances, I take the view that a sentence of 4 years and 10 months is appropriate in the circumstances of this case and properly reflects the defendant’s criminality.

There is the suspended sentence for the criminal damage and common assault conviction. As fairly accepted by Ms Wong, the court has a discretion to consider activating that suspended sentence. In light of the close proximity of the commission of the present offence and the sentence imposed for the criminal damage and common assault offences, I consider that it is justified and appropriate in the circumstances to order that the 14 days’ suspended sentence be activated and to be served consecutively to the 4 years and 10 months’ sentence I am imposing for the trafficking in dangerous drugs offence.

So, defendant, I now sentence you to a total of 4 years 10 months and 14 days’ imprisonment.