HKSAR v. Fung Shiu Ki

DCCC 1063/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1063 OF 2012

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REASONS FOR SENTENCE

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1.The defendant appeared before me this morning and pleaded guilty to a single charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap134.

2.The particulars of offence aver that on the 16th day of August 2012, at the toilet for the disabled, Yau Ma Tei Market Public Toilet, No 20 Kansu Street, Yau Ma Tei, Kowloon, in Hong Kong, the defendant had unlawfully trafficked in a dangerous drug, namely 25.7 grammes of a mixture containing 6.76 grammes of heroin hydrochloride. 

Facts

3.This is a simple stop-and-search case.  At about 5.47 pm on 16 August 2012, the defendant was noticed by a policeman acting furtively when walking at the junction of Kansu Street and Battery Street, Yau Ma Tei, Kowloon.  One minute later, the defendant was intercepted by the police at Battery Street and shortly afterwards he was taken to the toilet for the disabled at the Yau Ma Tei Market Public Toilet for the purpose of conducting a search. 

4.Upon search, the policeman found in the defendant’s left front pocket of the trousers one black plastic bag containing altogether three transparent resealable plastic bags.  In each of those transparent resealable bags, there were further 40 smaller packets consisting of suspected dangerous drugs.  There are, as a result, altogether 120 such packets.  When the defendant was arrested and cautioned, he claimed that all the stuff was for his own consumption.  Also found in his possession was HK$675.6 and four mobile phone SIM cards, one mobile phone memory card and also one mobile phone. 

5.In a subsequent video record of interview, under caution, the defendant had clarified that the stuff that he had referred during his oral reply under caution was white powder.  All the packets of suspected dangerous drug were later sent to the government chemist for analysis.  As a result, it was confirmed that those were indeed heroin hydrochloride with the content as more particularised in the charge.  The total value of the drugs seized, according to the Summary of Facts, was said to be about HK$5,671.

Criminal Records and Background of the defendant

6.The defendant is now aged 42.  He lives alone in Hong Kong.  His parents have passed away years ago but he still has to support a maternal aunt in the mainland who is now 71 years old.  He has only a Form 3 educational level.  At the time of the arrest, I was told by his lawyer that he worked as a part-time transportation worker earning about $6,000 a month.

7.The defendant had in the past altogether eight criminal records, all of the same offence, namely “managing a vice establishment”.  His last conviction was on 17 August this year where he was sentenced in the Kowloon City Magistracy for 8 months’ imprisonment. 

8.It should be noted that his last sentence took place actually only one day after the present offence was committed.  I was informed by the prosecution that what happened was that the last case was actually committed by the defendant in April this year.  He was then given police bail.  However, the defendant jumped bail and failed to appear in court as appointed.  In other words and more importantly, he committed the present offence whilst still on police bail.  I was informed that he was due to be released for his last case in January next year.  Obviously, this is an aggravating factor which I would no doubt take into account when passing the present sentence.

9.In mitigation, Mr Tang, the defendant’s lawyer, had informed the court that the defendant committed this present offence because he could not turn down a request of a favour from his good friend who happened to be a drug trafficker.  The drug trafficker, according to Mr Tang, knew the defendant since he was very young and the defendant was indeed indebted to him for all his helps especially for providing and supplying the expenses for the funeral arrangements for his deceased parents.

10.At the material time, the defendant was having afternoon tea with this drug trafficker and this friend of the defendant suddenly requested him to carry a bag which contained the dangerous drugs for him.  The defendant was then asked to deliver the bag which contained the dangerous drugs to a private vehicle which he believed would arrive later near the vicinity.  Mr Tang urged the court to consider these special circumstances and asked the court to be as lenient as possible.

Sentencing Considerations

11.Trafficking in dangerous drug is of course a very serious offence. Anyone who is involved in this kind of criminal activity will expect no mercy from the court.  In passing the sentence, I take into account the nature of the dangerous drug involved, the quantity that was mentioned in the charge and also the mitigation advanced on his behalf by his lawyer.  What Mr Tang has told the court about the circumstances as to how the defendant came to carry the bags that contained the dangerous drugs does not begin to mitigate the seriousness of the matter.  In any event, even if I were to accept the defendant’s mitigation, I do not see how I can reduce his sentence on this account.

12.I must put on record, however, that after listening to this explanation proffered by the defendant through his lawyer, I rejected this version entirely.  Clearly, there is not a ring of truth from his explanation.  If one looks at the Summary of Facts clearly, the defendant was at the time carrying a mobile phone with four mobile phone SIM cards.  What he told the court now in mitigation was also materially different from what he had told the police immediately upon arrest under caution.  I have no doubt that the defendant just made it all up as a desperate attempt to try to mitigate the seriousness of the matter.  However as I said, even if I were to accept fully what he had told the court today, it does not help in his mitigation in any event.

13.As properly conceded by Mr Tang, there is a clear sentencing guideline laid down by the Court of Appeal in respect of trafficking in heroin.  In R v Lau Tak Ming & Others [1992] HKLR 370, it is said that for up to 10 grammes of heroin, the proper starting point is 2 to 5 years’ imprisonment.

14.For the present quantity which is 6.76 grammes of heroin, I consider that the proper starting point is 48 months.  Because of the fact that the defendant committed the offence whilst on bail, I therefore would increase the sentence by 3 months to reflect the seriousness of the matter.  The starting point is therefore increased to 51 months.

15.The defendant pleaded guilty and that is his only effective mitigation. For this, his sentence is reduced to 34 months.  This sentence shall run consecutively to his existing sentence.