COURT: The defendant, Fong Yuen-man, faced two counts. The 1st count was trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134. The 2nd count was failing to surrender to custody without reasonable cause, contrary to section 9L(1) and (3) of the Crime Procedure Ordinance, Chapter 221. The defendant pleaded guilty to both counts before a magistrate and was committed to the Court of First Instance of the High Court for sentence.
The Admitted Facts
Charge 1
On 2 March 2016, the defendant was observed to be acting suspiciously by plainclothes police officers. When intercepted, she threw an item from her right hand onto the road and police immediately recovered the item, which was a tissue paper containing two plastic bags containing a total of 26.5 grammes of a crystalline solid containing a total of 26 grammes of methamphetamine hydrochloride, which is ‘Ice’.
The defendant was arrested and stated under verbal caution that the two bags of ‘Ice’ were purchased for her own consumption.
In the subsequent video-recorded interview, the defendant admitted under caution that she met a male, whom she knew, offer ‘Ice’ for sale and she paid him $1,000 for 7 grammes of ‘Ice’. The male passed her the tissue paper with the contents inside. She did not check the contents. She discarded the packet when intercepted as she was scared.
The ‘Ice’ was for her own consumption and she had been a drug addict for ‘Ice’ for one year. She consumed by inhaling almost daily. She purchased from that male for the first time and did not know the name or contact number of that person.
The defendant’s home was searched but nothing suspicious was found.
At the time of the arrest, the defendant had with her cash $245 and a mobile phone.
Manual screening of the defendant’s mobile phone showed that there were messages exchanged between the defendant and unknown persons. On 11 February 2016, it was discussed that the price of certain items was $8,000. And on 14 February 2016, the price had to be at least $900 because it involved the High Court. On 20 February 2016, there were two items, the first one were tablets for sale had been tasted and were found to be of good quality; the second one was the defendant could arrange purchasers to try something at the scene before buying it. And on 2 March 2016, the price for a “horse” was $3,500 and the price for “half a horse” was $11,000.
The estimated prevailing street value of the dangerous drug seized was $8,295.
The defendant admitted that at the material time she unlawfully possessed the dangerous drug in question for the purpose of trafficking.
Charge 2
On 4 March 2016, she was charged at court for the offence of trafficking in a dangerous drug - at that time the number was KCCC 838/2016 – and she was granted court bail with conditions. The defendant signed at the back of an “Extract of Record of Bail Proceedings”. She confirmed and acknowledged that she understood she was being admitted to bail on the conditions as stated in the extract and on her understanding to surrender herself to the Kowloon City Magistrates’ Courts at the time and date as stated in the extract, namely on 15 April 2016 at 9.30. The defendant also confirmed that she had received a copy of the extract.
At the next hearing, that is on 15 April 2016, the defendant was absent from court and a warrant was issued.
On 9 September 2024, the defendant was intercepted by police officers and was arrested. She had, without reasonable cause, failed to surrender to custody as shall have been appointed by the court from 15 April 2016 to 8 September 2024, that is a total period of 8 years and 4 months.
The background and mitigation
According to the antecedents statement, the defendant was born in July 1994, so she is now 32 years of age. The defendant is not a first offender. She had a previous conviction for robbery in 2007, when she was given a Probation Order for 20 months. She was in breach of the Probation Order in 2008 and was ordered to stay in a Children and Juveniles’ Home for 6 months under the Probation Order. And she had a theft conviction in 2008 and was put on probation again for 21 months. She is charged with a case of conspiracy to trafficking in a dangerous drug and is awaiting results.
The defendant claimed to be educated up to Form 4 secondary level. She had worked as a receptionist at a beauty centre for half a year in 2019 earning $14,000 per month. In 2021, she worked as a cold call salesperson in a financial intermediary earning $12,000 a month for half a year. She had been unemployed since.
The defendant is married. She had two daughters and two sons. One of the daughters was adopted by another and her parents took care of the other three children all along.
Ms Cindy Kong, counsel for the defendant, provided more information about the defendant. The defendant’s husband was said to be serving a jail sentence in Taiwan. Her children, aged 15, 8 and 4, are being looked after by her mother and mother-in-law. The defendant worked as a beautician earning $14,000 per month.
The defendant, her husband and their daughter all wrote to the Court asking for leniency. The defendant acknowledged that she knew it was wrong to have absconded. The reason she gave, and supported by her husband, was that she wanted to take care of her children. In mitigation, Ms Kong also asked this Court to be as lenient as possible.
My consideration for the sentence
Trafficking in a dangerous drug is a serious offence. A person convicted of trafficking in a dangerous drug on indictment is liable to a fine of $5 million and to imprisonment for life. I will adopt the six-step approach in the case of Herry Jane Yusuph.
Step 1: The dangerous drug involved was 26 grammes of ‘Ice’, which falls into the band of 10 to 70 grammes with a starting point of 7 to 11 years according to the revised guidelines in the case of Huang Ruifang (No 3).
Step 2: As for the role of the defendant, although there were some dubious or suspicious exchanges between the defendant and unknown persons, I am prepared to treat the defendant as a courier.
Step 3: Within the relevant band, the proper starting point for this offence, for the defendant, is one of 8 years.
Step 4: There are no aggravating factors as far as the offence itself is concerned. The only other factor is that the defendant is not a first offender. As the previous offences are not of a similar nature, so I will not enhance the sentence under this step.
Step 5: The defendant pleaded guilty at the earliest available opportunity, is entitled to a full one-third discount. With the one-third discount, the sentence is 5 years and 4 months.
The last step, step 6: I am of the view that the sentence is fair, just and balanced in all the circumstances of the offence and the defendant, the offender.
For the offence of failing to surrender to custody without reasonable cause, a person convicted of this offence upon indictment is liable to a fine of any amount and to imprisonment for 12 months.
The defendant was admitted to bail on 4 March 2016 and she failed to appear at the hearing on 15 April 2016. She was not caught until September 2024, so she had absconded for a period of over 8 years and 4 months, which cannot be said to be a short time. Whilst I understand the anguish of a mother facing a serious offence, the court cannot condone such a conduct as abscondment. The defendant must bear the consequences of her criminal act even though her family suffers as a result. I am of the view that a proper starting point of this offence is one of 9 months. With the one-third discount, the sentence is 6 months.
As pointed out by your counsel, according to the case of Lo Kam Fai, if a defendant absconded while awaiting trial is subsequently charged with the offence of failing to surrender to custody without reasonable cause, the sentence of the offence ought to, in principle, be ordered to run consecutively to the sentence imposed for the earlier offence. I order that 2 months of the 2nd count to run consecutively to the 1st count of trafficking in a dangerous drug after considering the totality principle.
So the 1st count, the sentence is 5 years and 4 months. The 2nd count, 6 months, 2 months of which to run consecutively to the 5 years and 4 months imposed for the 1st count, making a total of 5 years and 6 months.
