HKSAR v. FUNG HO WAI, SUKI

HCCC 200/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 200 OF 2014

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HKSAR
v
Fung Ho-wai, Suki
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Before: Deputy High Court Judge S D’Almada Remedios

Date: 14 April 2015 at 10.33 am

Present: Mr John Marray, on fiat, for HKSAR
Mr Yeung Yeuk-chuen, instructed by C K Mok & Co, assigned by DLA for the accused

Offence: Trafficking in dangerous drugs (販運危險藥物)

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Transcript of the Audio Recording
of the Sentence in the above Case
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COURT: Defendant, you have pleaded guilty to a charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance. You have admitted that on 7 December 2013, you trafficked in 19.04 grammes of a crystalline solid containing 18.69 grammes of methamphetaminehydrochloride and 0.12 gramme of a powder containing 0.09 gramme of ketamine.

On that day, at about 2340 hours, you crossed the border from China into Hong Kong at Lowu. Upon arrival at the customs hall, youwere examined and searched by the custom officers. Upon search of you, the drugs as mentioned were found in your underwear, beingyour bra and your underpants.

Defendant, you are 31 years of age and divorced. You have five criminal convictions which occurred on four occasions. Four of thoseconvictions are for possession of dangerous drugs, the first dating back to 2001, the last being in 2011, to which in those fourprevious occasions you were given the full range of sentences starting from probation to CSO, a suspended sentence and eventuallysent to the drug addiction treatment centre. The fifth conviction was a breach of a probation order.

Your counsel, Mr Yeung, has given detailed mitigation on your behalf. You have written a letter expressing your remorse to myselfand more particularly your mother. I have taken into account the contents of that letter.

At the time of your arrest for trafficking in dangerous drug, you explained under caution that the drugs were all for your own consumption.Found on your person that day was also a green drinking straw, that you say was used for taking the ketamine. You have no previousconvictions for trafficking. The prosecution have accepted that all the drugs found in your possession were intended for your ownconsumption. On that basis, although you have pleaded guilty to a charge of trafficking, you shall be sentenced on the basis thereforethat the drug was wholly intended for your own consumption.

The relevant authorities as to sentencing for an accused on this basis is laid down in the case of HKSAR v Tsang Chung Keung CACC 165 of 2014. The Court of Appeal in that case referred to the case of Secretary for Justice v Chan Chun Fai [2001] 3 HKLRD 116 where in that case, very similar to the present case, the accused was caught leaving Hong Kong for Macau with 12.85 grammes of “Ice”in his possession. He pleaded guilty to trafficking on the accepted basis the drug was wholly for his own consumption, and the Courtof Appeal there adopted a starting point of 7 years, reduced it by 25 per cent to take account of the factor of self-use and thenfurther reduced it by one-third to take account of the guilty plea. In following the case of Chan Chun Fai as laid down to determine the appropriate sentence, had you been convicted after trial, I would have taken a starting point of 7years’ imprisonment under the guideline set out in Attorney General v Ching Kwok Hung.

Adjusting the starting point by reducing it by 25 per cent to take account of the factor of self-use, the sentencing point thereforewill be one of 63 months’ imprisonment. Your strongest mitigating factor is your plea of guilty. On that basis, that sentencingpoint shall be reduced by one-third to take that into account. The resulting sentence will be one of 42 months. Otherwise in termsof years, that is 3 years and 6 months’ imprisonment to which you shall be so sentenced. In view of the very, very small amountof ketamine, I have ignored that drug for the purposes of sentence.