HKSAR v. Fong Sui Chung

HCCC 304/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 304 OF 2012

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REASONS FOR SENTENCE

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1.Before me, the defendant Fong Sui‑-chung has pleaded guilty to one count of unlawfully trafficking in a dangerous drug, namely, 2.45 kilogrammes of powder containing 1.53 kilogrammes of ketamine.

2.The facts admitted are briefly as follows.  On 18 January 2012, customs officers mounted an anti-narcotics operation at the Aberdeen Typhoon Shelter. 

3.At 2:20 pm, a taxi entered Aberdeen Fish Market Road and stopped outside the Fish Marketing Organization.  A person, who later became the accused in HCCC 303 of 2012, came out from the said Organization and passed a blue plastic bag to the nearside rear passenger of the taxi.  The taxi immediately left and that person returned to the said Organization.

4.The taxi, which travelled towards Causeway Bay, was followed by other customs officers. 

5.At 2:30 pm, near the junction of Russell Street and Matheson Street, the taxi was intercepted by customs officers.  The defendant in this case was found at the nearside rear passenger seat with the aforesaid blue plastic bag by his side.

6.Customs officers found from the blue plastic bag 10 zip‑lock bags of ketamine, which formed the subject matter of the charge: 2.45 kilogrammes of powder containing 1.53 kilogrammes of ketamine.

7.The retail value of the ketamine was around $271,950.

8.In Secretary for Justice v Hii Siew‑cheng [2008] 3 HKC 323, the Court of Appeal set the sentencing guidelines for trafficking in ketamine.  For the quantities relevant to the present case, namely, 2.45 kilogrammes of powder containing 1.53 kilogrammes of ketamine, it was held that for over 1,000 gm – 14 years’ imprisonment upwards.

9.According to the guideline, for 1.53 kilogrammes, the proper sentence seems to me to be 16 years’ imprisonment.  This is in line with a decision of the Court of Appeal that Mr Derek Lai, for the prosecution, has drawn my attention to.  In HKSAR v Ng Hon Keung [2012] 1 HKLRD 1017, the Court of Appeal considered as appropriate a starting point of 16 years’ imprisonment for trafficking in about 1.7 kilogrammes of ketamine.

10.The defendant, born in May 1994, was 17 years of age when he committed the offence.  His explanation was that he was promised $5,000 for making delivery of the ketamine.  However, there is absolutely no excuse for his assisting in this heinous trade.  He has a clear record.  The reports I have ordered on him have given me better understanding of his personal background and circumstances.

11.I shall have a short discussion on three matters that may affect sentence: the defendant was a first offender, he was under 18 years of age when he committed the offence, and he has given assistance to the police. 

12.Mr Derek Lai has drawn my attention to HKSAR v Wong King‑wai [2008] 3 HKLRD 293 where it was held by the Court of Appeal that a clear record might have a bearing on mitigation for comparatively minor offences but for serious offences, given the “one‑third rule” for pleading guilty, there should be no further discount for a clear record unless evidence of positive character was forthcoming. 

13.I have noted that the defendant was under 18 years of age when committing the offence and therefore but for the fact that drug trafficking was an excepted offence, section 109A of the Criminal Procedure Ordinance, Cap 221 would be engaged, that “no court shall sentence a person of or over 16 and under 21 years of age to imprisonment unless the court is of opinion that no other method of dealing with such person is appropriate”.  In any event, where the offence involved as in the present case is so grave and serious as drug trafficking, personal circumstances such as the defendant’s age will hardly make any difference in sentencing save to a very limited extent.  See The Queen v Lau Tak‑ming & Ors [1990] 2 HKLR 370, at 386F-G and AG v Ko Fei Tat [2002] 4 HKC 59. This sentencing policy is very clear.  It is for deterrence, warning all persons, young and old alike, against committing such grave crime so harmful to others, with the aim of making it difficult for drug traffickers to recruit others to work for them.

14.In HKSAR v Wong Ka Wai & Anor, CACC 242/2001 (4 January 2002, unreported), where the two defendants, respectively aged 16 years and 2 months and 18½ years, had pleaded guilty to trafficking in heroin, the Court of Appeal observed that for serious offences, youngsters must expect little quarter from the courts.  In HKSAR v Mtwazi Carlos Adam, CACC 299/2007 (25 September 2008, unreported), where the defendant was 18 years of age when committing the offence of trafficking in heroin, the Court of Appeal said:

“… it has long been recognized by this court that it is only in cases of extreme youth that the age of a person who commits a serious offence may be of relevance. In the present case the applicant is not of such an age.”

15.According to AG v Li Chi Ho [1987] HKLR 1233 and AG v Yau Wing Hong [1995] 3 HKC 95 at 98E‑G, a person who just reached 15 years of age could be considered as extreme youth.

16.Considering all the circumstances of this case, I am prepared to adopt a relatively lenient starting point of 15 years of imprisonment. 

17.The most important matter in mitigation in the present case is the provision of assistance to the authorities in the combat of crime.  The sentencing practice and principle of awarding a discount to offenders who gave such assistance to the authorities are well established and explained in a number of cases referred to in Chapter 4 of Sentencing in Hong Kong, 6^th Ed, pp 51-66.

18.According to the information provided to me, there are special circumstances which justify a lenient view to be taken of the defendant.  I consider it appropriate to give the defendant a discount above the one‑third to which he is entitled for pleading guilty from the starting point of 15 years referred to above.  In the result, the defendant is sentenced to 8 years and 6 months’ imprisonment.