HCCC345/2016 HKSAR v. FUNG WAI LUNG AND ANOTHER - LawHero
HCCC345/2016
高等法院（刑事）Deputy High Court Judge D Yau27/3/2017
HCCC345/2016
A A
HCCC 345/2016
B IN THE HIGH COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
C C
CRIMINAL CASE NOS 345 OF 2016
D ----------------- D
HKSAR
E E
v
F F
FUNG WAI LUNG (A1)
NGO WAI KUEN LAI LAI (A2)
G G
------------------
H Before: Deputy High Court Judge D Yau H
Date: 28 March 2017 at 10.38 am
I
Present: Mr John Marray, on fiat, for HKSAR I
Mr Leung Chun-keung, instructed by S H Chan & Co,
assigned by DLA, for the 1st accused
J Mr Alex Ng, instructed by Benjamin Au & Billy J
Chan, assigned by DLA, for the 2nd accused
Offence: Trafficking in a dangerous drug (販運危險藥物)
K K
---------------------------------
L Transcript of the Audio Recording L
of the Sentence in the above Case
---------------------------------
M M
COURT: The defendants face one joint count of trafficking in
dangerous drugs. D1, Fung Wai-lung, pleaded guilty to the
N N
charge on the first day of trial. D2, Ngo Wai-kuen, pleaded
not guilty. She was convicted after trial.
O O
Particulars of the charge are that the defendants together,
on 18 December 2015, unlawfully trafficked in 262.0 grammes
P of a crystalline solid containing 256.8 grammes of P
methamphetamine hydrochloride, commonly known as ‘ice’.
Q Q
Summary of facts
R In the evening of 18 December 2015, a packet of dangerous R
drugs was found by customs officers during a routine check
conducted on the coach NC 8112 at Lok Ma Chau. The packet
S was hidden under one of the seats on the last row of the S
coach. It was left where it was found by the custom
T
officers because they wanted to apprehend the person or T
people who had brought in the package from mainland China
into Hong Kong.
U U
CRT12/28.3.2017/LS 1 HCCC 345/2016(1)/Sentence
V V
A Custom officers pretended to be passengers and sat on and A
next to the seat with the hidden packet underneath during
the journey of the coach from Lok Ma Chau to Mong Kok. All
B the passengers got off of the coach after it arrived at Mong B
Kok with the packet still in the same place under the seat.
C C
About 25 minutes after the coach had terminated in Mong Kok,
the defendants returned to the coach station. D1 got back
D onto the coach. He lifted up the seat with the hidden D
packet underneath and retrieved the packet. When he turned
around to leave, he was quickly subdued by customs officers
E who were waiting on the coach, again, pretending to be E
passengers.
F F
The defendants were both on the coach when it started off in
Huanggang, when it travelled the short distance from there
G to Lok Ma Chau, and when the coach journeyed from Lok Ma G
Chau to the terminus in Mong Kok.
H The 2nd defendant, D2, was however not on the coach when D1, H
Mr Fung Wai-lung, went to retrieve the packet. D2 was
I
standing on the pavement just outside the entrance of the I
coach.
J The defendants were both charged with trafficking of the J
dangerous drugs in the packet. It is the prosecution’s case
that the defendants committed the offence jointly. They say
K that D2 had said to D1 words indicating that she knew the K
packet was underneath the seat. D2, Miss Ngo Wai-kuen’s
L fingerprints were later found on the sticky side of some of L
the adhesive tapes wrapped around the packet.
M At the time of D1, Mr Fung, entering his guilty plea, he M
refused to admit to committing the offence jointly with Ngo
Wai-kuen. D1 specifically refused to admit to the part of
N the summary of facts, which was paragraph 4, last sentence, N
where it is stated that Ngo Wai-kuen said to D1, Fung Wai-
O lung, while on the coach, words indicating that Ngo Wai-kuen O
knew that the packet was underneath the seat where it was
hidden.
P P
The sentencing of D1 was adjourned to until the end of trial
of Miss Ngo Wai-kuen. D1 gave evidence on behalf of the
Q Q
defence in D2’s trial, testifying that Ngo Wai-kuen never
said those words and explained how he had picked up from the
R floor some tapes discarded by Ngo Wai-kuen and used them to R
wrap around the packet of drugs. Ngo Wai-kuen was found
guilty after trial, indicating that the jury disbelieved
S D1’s evidence. S
Subsequent to Ngo Wai-kuen’s conviction, D1 indicated
T T
through counsel, Mr Leung, and confirmed in court himself
that he no longer wanted to dispute the relevant part of the
U summary of facts. The paragraph was read out to D1 again U
CRT12/28.3.2017/LS 2 HCCC 345/2016(1)/Sentence
V V
A and he admitted to its contents. D1 is therefore sentenced A
on the basis that he committed the offence jointly with D2.
B D1’s previous convictions B
D1 has one previous conviction. He was convicted for one
C C
charge of trafficking in dangerous drugs on 23 December 2010
in the District Court and was sentenced to detention in the
D training centre. This is a spent conviction according to D
section 2 of the Rehabilitation of Offenders Ordinance, Cap
297, and will not be taken into consideration when deciding
E on the appropriate sentence. E
D2’s previous convictions
F F
D2 has a total of 12 convictions from 11 court appearances.
G Six of those are related to dangerous drugs. Of those six, G
two are for trafficking in dangerous drugs. Her last
conviction for trafficking in dangerous drugs was in July
H 2004 when she was sentenced to 3 years and 4 months’ H
imprisonment. She was last released from prison on 5
I
February 2015 after serving a 22 months’ sentence for I
possession of dangerous drugs and failing to surrender to
custody without reasonable cause.
J J
During her remand in the present case, D2 was sentenced to
detention in an addiction treatment centre for the offence
K of possession of dangerous drugs on 31 August 2016. K
Pursuant to section 6A(1)(b) of the Drug Addiction Treatment
L Centres Ordinance, Cap 244, should D2 be sentenced to L
imprisonment for a term of more than 9 months in the present
case, this detention order shall cease to have effect.
M M
D1’s mitigation
N D1 is 24 and he was 22 at the time of the commission of the N
offence. Mr Leung for D1 told the court that it is the
O defendant’s case that one-third of all the ‘ice’ trafficked O
was for his self-consumption. I indicated to Mr Leung that
I was inclined not to believe that assertion. I explained
P the basis for my inclination, which is that D1 had given P
evidence that was clearly inconsistent with the evidence of
the other defence witnesses, suggesting that he had not been
Q Q
a credible witness.
R The jury had, by implication of their conviction of D2, R
clearly disbelieved D1’s evidence that D2 had nothing to do
with the packet containing the drugs. I invited Mr Leung to
S consider asking if D1 would like to choose to go into the S
witness-box to put forward his case. Mr Leung told me that
he had taken specific instructions and D1 had decided he did
T T
not wish to go into the witness-box.
U U
CRT12/28.3.2017/LS 3 HCCC 345/2016(1)/Sentence
V V
A I then indicated to Mr Leung that while I am not prepared to A
accept that one-third of the drugs were for his self-
consumption, I am of the view that some of the drugs were in
B fact for D1’s self-consumption. The reasons for that view B
are as follows. A small portion of the ‘ice’ seized were
contained in a separate plastic bag which was taped to the
C C
outside of the cigarette box that contained the bulk of the
256.8 grammes of ‘ice’ and D1 was tested positive for
D amphetamine shortly after he was arrested for the present D
case. Mr Leung courteously noted my view but did not make
further submissions on that.
E E
D2’s mitigation
F F
Mr Alex Ng, with his usual fairness, accepted that he could
not put forward any meaningful mitigating factor. He agreed
G that a proper starting point would be 171 months’ G
imprisonment and that the sentence should be enhanced by 6
months for involving a cross-border element. He is also
H aware that the fact that this is the third conviction for H
trafficking in dangerous drugs for the 2nd defendant; it may
I
be counted as an aggravating factor. I
Sentence
J J
The maximum sentence on conviction on indictment for
trafficking in dangerous drugs is a fine of $5 million and
K imprisonment for life. K
L According to the case of HKSAR v Tam Yi Chun, the guideline L
tariff for trafficking of between 70 and 300 grammes of
‘ice’ is that of 11 to 15 years’ imprisonment.
M M
According to the case of HKSAR v Chung Ping Kwan where the
trafficking of ‘ice’ involved an international or cross-
N border element, the sentence should be enhanced. As a broad N
guideline for trafficking between 250 and 500 grammes of
O ‘ice’, the suggested level of enhancement is in the range of O
6 months to 1 year.
P The 1st defendant’s assertion of self-consumption P
In the case of HKSAR v Wong Suet Hau, the Court of Appeal
Q Q
gave guidance on how to deal with situations where it is
suggested in mitigation that, and I quote, “A significant
R proportion of the drugs was intended for” self-consumption R
and not for trafficking. I must look at all the
circumstances in order to decide whether or not to accept
S the defendant’s contention that most of the ‘ice’ was for S
his self-consumption. I then set out paragraph 34 of the
judgment, and I quote:
T T
“Arising from these considerations:
U U
CRT12/28.3.2017/LS 4 HCCC 345/2016(1)/Sentence
V V
A (1) Where after a plea of guilty to trafficking A
in dangerous drugs it is suggested in mitigation
that a significant proportion of the drugs was
B intended for the consumption of the defendant and B
not for trafficking, and where it is apparent from
the circumstances as a whole that the contention,
C C
if true, may well make a difference to sentence,
the sentencing court should address the issue.
D D
(2) Having regard to the dangers of the abuse of
this avenue of mitigation, the judge should look
E with the greatest care at all the surrounding E
circumstances in order to decide whether or not to
accept the contention.
F F
(3) In determining whether to accept the
G contention, the normal rules for determining the G
factual basis for sentence apply. The factors to
be considered will include (a) the quantity of
H drugs, and, if known, their value; (b) the general H
circumstances, including how the drugs are wrapped
I
and how many wraps or packets were found; (c) I
where the drugs have been discovered, whether at a
residential address owned or rented in the
J trafficker’s own name or in someone else’s name, J
or whether they were being carried in a public
place; (d) the presence of paraphernalia
K associated with drugs, including, on the one hand, K
items used for packaging, weighing and diluting
L drugs, and, on the other, items which are used for L
the consumption of drugs; (e) whether the
defendant is an addict or is otherwise accepted to
M have been a habitual user of the drug in question; M
(f) the explanation given by the defendant
following arrest; (g) the defendant’s general
N means and his ability to pay for his drugs N
otherwise than by trafficking in them; and (h) the
O defendant’s criminal record, if any, in relation O
to previous drug offences.
P Usually a court will be able to determine the issues P
on these factors without a Newton hearing.”
Q Q
In the case of HKSAR v Chow Chun Sang, the Court of Appeal
is of the view that, and I quote:
R R
“In drug trafficking cases, when all or part of the
drugs are intended for the trafficker’s own
S consumption, the ensuing discount to the sentence S
should, depending on the circumstances, fall somewhere
between 10 and 25 per cent of the basic starting
T T
point.”
U U
CRT12/28.3.2017/LS 5 HCCC 345/2016(1)/Sentence
V V
A In the case of HKSAR v Liu Ming Sze, that is CACC 103 of A
2016, the Court of Appeal confirmed that the Chow Chun Sang
range of 10 to 15 per cent discount will only be relevant
B after it is established that, and I quote, “a significant B
proportion” of the drugs involved were for self-consumption
as stated in the case of Wong Suet Hau.
C C
As mentioned above, despite the court’s invitation, D1 had
D chosen not to give evidence to put forward his case that D
one-third of the ‘ice’ were for his self-consumption. That
being the case, I proceeded to examine D1’s one-third for
E self-consumption claim with the available evidence. E
A very large quantity of ‘ice’ at 256.8 grammes was
F F
involved. Even at one-third that quantity, which is 85.6
grammes, it is still a very large quantity, a quantity so
G large that it would be highly unlikely that it would be for G
self-consumption.
H The packaging of the drugs was such that the bulk of the H
drugs were separated from a small packet of ‘ice’ taped
I
outside the cigarette box suggesting that only the smaller I
packet was for D1’s self-consumption. If D1 had intended
for one-third of all the drugs to be for his own
J consumption, given the fact that the bulk of the drugs were J
in one single packet, he would have had to separate the
drugs and take out his one-third. There is no reason for
K having a smaller packet taped on the outside. The only K
reasonable inference must be that the smaller packet was
L meant for D1’s self-consumption. L
There were no paraphernalia found on D1 associated with the
M consumption of ‘ice’. There is no evidence that such M
paraphernalia were found in D1’s home. Furthermore, D1 had
never been convicted of a possession of dangerous drug
N offence or an offence relating to the usage of dangerous N
drugs in the past six years, indicating that it is unlikely
O that he is an addict, and even more unlikely that he is such O
a serious addict as to require 85.6 grammes of ‘ice’ for his
self-consumption.
P P
D1 was working as an air-conditioner technician earning
around $15,000. It is unlikely that he would be able to
Q Q
purchase this much ‘ice’ on that kind of earnings otherwise
than by trafficking in them.
R R
As I had indicated earlier, I am prepared to, and do, find
that the small plastic bag of ‘ice’ that was attached to the
S outside of the cigarette box were possibly for D1’s self- S
consumption. I find, however, that since this small plastic
bag contained just 10.8 grammes of ‘ice’, being 4.2 per cent
T T
of the total seized, it did not amount to a significant
proportion of the trafficked drugs and the suggested range
U of discounts set out in Chow Chun Sang is not relevant. U
CRT12/28.3.2017/LS 6 HCCC 345/2016(1)/Sentence
V V
A A
Furthermore, given the small quantity and the fact that
possession of that quantity of ‘ice’ would still carry its
B own punishment, I find that there is no practical difference B
between sentencing on the basis that all the ‘ice’ were for
trafficking and on the basis that 10.8 grammes were for D1’s
C C
self-consumption.
D The starting point for both defendants D
A simple arithmetical application of the guideline tariffs
E to 256.8 grammes of ‘ice’ would lead to a starting point of E
171 months’ imprisonment. This is the starting point that I
adopt in relation to both defendants.
F F
Importation as an aggravating factor for both defendants
G G
For the aggravating factor of the drugs being brought across
the border from mainland China into Hong Kong, I will
H enhance the sentence by 6 months, leading to a sentence of H
177 months’ imprisonment.
I I
Previous conviction as an aggravating factor
J D1 J
In relation to D1, as I had mentioned above, his previous
K conviction for trafficking in dangerous drugs is a spent K
conviction. As such, it should not affect D1’s sentence.
L L
D2
M As for D2, I find that although her last conviction for M
trafficking in dangerous drugs was in 2004 and the
commission of the present offence in December 2015, this is
N still her third conviction for a similar offence and as such N
should be treated as an aggravating factor.
O O
It is trite law that the sentence for an offender with
similar previous convictions may need to be enhanced in
P order to deter and protect, and I quote: P
“There are many examples of this kind to be made and
Q Q
trafficking in dangerous drugs is certainly no
exception. If indeed there are any exceptions to the
R general rule that reoffending in the same or in similar R
way may aggravate the offence, at least so far as
sentence is concerned, this will have the result that
S the starting point which would have been adopted for a S
man of good character will sometimes need to be
increased to take into account the aggravating features
T T
of persistence and the failure of previous sentences to
deter on the one hand, and the court’s duty to protect
U the public on the other. The court in other words is U
CRT12/28.3.2017/LS 7 HCCC 345/2016(1)/Sentence
V V
A passing a deterrent sentence on the persistent offender A
from whom the public needs protection, which is often
unnecessary on the first or even sometimes a second-
B time offender. Much may depend on the gravity of the B
crime. The graver the crime, the more obvious becomes
the need for a deterrent sentence on repetition in
C C
order that the public are properly protected.”
D The above passage is taken from the case of HKSAR v Chan Pui D
Chi where the applicant was sentenced to 14 years’
imprisonment for trafficking in 260.77 grammes of heroin
E hydrochloride. There the court found that a sentence of 13 E
years’ imprisonment would have been more appropriate for the
quantity of drugs but refused to disturb the sentence after
F F
acknowledging that the trial judge was entitled to take into
consideration the criminal record of the applicant. There,
G the applicant had 22 previous convictions and had G
previously, in 1988 and 1992, been sentenced respectively to
5 years and 6 and a half years’ imprisonment for trafficking
H in dangerous drugs. His criminal record showed several H
other drug-related offences including others for
I
trafficking. The enhancement applied in Chan Pui Chi was I
therefore 12 months’ imprisonment or around 7.7 per cent.
J In our present case, this is D2’s third conviction for J
trafficking in dangerous drugs. There is however a time
lapse of some 11 years between the last and the present
K conviction. In order to achieve the desired deterrent and K
protection effect, I find that D2’s sentence should be
L enhanced by a further 6 months’ imprisonment. This would L
lead to a sentence of 183 months’ imprisonment for D2.
M Joint enterprise M
The defendants had committed the offence jointly. The fact
N that Ngo Wai-kuen, D2’s fingerprints were found on the N
adhesive tapes proves that she was very much involved in the
O preparation of the packet for importation into Hong Kong. I O
find the defendants equally culpable in the commission of
the present offence.
P P
I consider, however, that the sentence to be imposed on them
is sufficient to reflect their individual culpability and
Q Q
there should not be a further enhancement of the sentence on
the basis that the offence was committed by more than one
R person. R
Final sentence
S S
D1, Fung Wai-lung, is sentenced to 118 months’ imprisonment
or 9 years and 10 months’ imprisonment after granting him
T T
the full one-third discount for his plea of guilty.
U U
CRT12/28.3.2017/LS 8 HCCC 345/2016(1)/Sentence
V V
A The 2nd defendant, Ngo Wai-kuen Lai Lai, is sentenced to 183 A
months’ imprisonment or 15 years and 3 months’ imprisonment.
The 2nd defendant’s drug addiction treatment centre’s
B detention order imposed on 31 August 2016 shall cease to B
have effect.
C C
D D
E E
F F
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT12/28.3.2017/LS 9 HCCC 345/2016(1)/Sentence
V V
A A
HCCC 345/2016
B IN THE HIGH COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
C C
CRIMINAL CASE NOS 345 OF 2016
D ----------------- D
HKSAR
E E
v
F F
FUNG WAI LUNG (A1)
NGO WAI KUEN LAI LAI (A2)
G G
------------------
H Before: Deputy High Court Judge D Yau H
Date: 28 March 2017 at 10.38 am
I
Present: Mr John Marray, on fiat, for HKSAR I
Mr Leung Chun-keung, instructed by S H Chan & Co,
assigned by DLA, for the 1st accused
J Mr Alex Ng, instructed by Benjamin Au & Billy J
Chan, assigned by DLA, for the 2nd accused
Offence: Trafficking in a dangerous drug (販運危險藥物)
K K
---------------------------------
L Transcript of the Audio Recording L
of the Sentence in the above Case
---------------------------------
M M
COURT: The defendants face one joint count of trafficking in
dangerous drugs. D1, Fung Wai-lung, pleaded guilty to the
N N
charge on the first day of trial. D2, Ngo Wai-kuen, pleaded
not guilty. She was convicted after trial.
O O
Particulars of the charge are that the defendants together,
on 18 December 2015, unlawfully trafficked in 262.0 grammes
P of a crystalline solid containing 256.8 grammes of P
methamphetamine hydrochloride, commonly known as ‘ice’.
Q Q
Summary of facts
R In the evening of 18 December 2015, a packet of dangerous R
drugs was found by customs officers during a routine check
conducted on the coach NC 8112 at Lok Ma Chau. The packet
S was hidden under one of the seats on the last row of the S
coach. It was left where it was found by the custom
T
officers because they wanted to apprehend the person or T
people who had brought in the package from mainland China
into Hong Kong.
U U
CRT12/28.3.2017/LS 1 HCCC 345/2016(1)/Sentence
V V
A Custom officers pretended to be passengers and sat on and A
next to the seat with the hidden packet underneath during
the journey of the coach from Lok Ma Chau to Mong Kok. All
B the passengers got off of the coach after it arrived at Mong B
Kok with the packet still in the same place under the seat.
C C
About 25 minutes after the coach had terminated in Mong Kok,
the defendants returned to the coach station. D1 got back
D onto the coach. He lifted up the seat with the hidden D
packet underneath and retrieved the packet. When he turned
around to leave, he was quickly subdued by customs officers
E who were waiting on the coach, again, pretending to be E
passengers.
F F
The defendants were both on the coach when it started off in
Huanggang, when it travelled the short distance from there
G to Lok Ma Chau, and when the coach journeyed from Lok Ma G
Chau to the terminus in Mong Kok.
H The 2nd defendant, D2, was however not on the coach when D1, H
Mr Fung Wai-lung, went to retrieve the packet. D2 was
I
standing on the pavement just outside the entrance of the I
coach.
J The defendants were both charged with trafficking of the J
dangerous drugs in the packet. It is the prosecution’s case
that the defendants committed the offence jointly. They say
K that D2 had said to D1 words indicating that she knew the K
packet was underneath the seat. D2, Miss Ngo Wai-kuen’s
L fingerprints were later found on the sticky side of some of L
the adhesive tapes wrapped around the packet.
M At the time of D1, Mr Fung, entering his guilty plea, he M
refused to admit to committing the offence jointly with Ngo
Wai-kuen. D1 specifically refused to admit to the part of
N the summary of facts, which was paragraph 4, last sentence, N
where it is stated that Ngo Wai-kuen said to D1, Fung Wai-
O lung, while on the coach, words indicating that Ngo Wai-kuen O
knew that the packet was underneath the seat where it was
hidden.
P P
The sentencing of D1 was adjourned to until the end of trial
of Miss Ngo Wai-kuen. D1 gave evidence on behalf of the
Q Q
defence in D2’s trial, testifying that Ngo Wai-kuen never
said those words and explained how he had picked up from the
R floor some tapes discarded by Ngo Wai-kuen and used them to R
wrap around the packet of drugs. Ngo Wai-kuen was found
guilty after trial, indicating that the jury disbelieved
S D1’s evidence. S
Subsequent to Ngo Wai-kuen’s conviction, D1 indicated
T T
through counsel, Mr Leung, and confirmed in court himself
that he no longer wanted to dispute the relevant part of the
U summary of facts. The paragraph was read out to D1 again U
CRT12/28.3.2017/LS 2 HCCC 345/2016(1)/Sentence
V V
A and he admitted to its contents. D1 is therefore sentenced A
on the basis that he committed the offence jointly with D2.
B D1’s previous convictions B
D1 has one previous conviction. He was convicted for one
C C
charge of trafficking in dangerous drugs on 23 December 2010
in the District Court and was sentenced to detention in the
D training centre. This is a spent conviction according to D
section 2 of the Rehabilitation of Offenders Ordinance, Cap
297, and will not be taken into consideration when deciding
E on the appropriate sentence. E
D2’s previous convictions
F F
D2 has a total of 12 convictions from 11 court appearances.
G Six of those are related to dangerous drugs. Of those six, G
two are for trafficking in dangerous drugs. Her last
conviction for trafficking in dangerous drugs was in July
H 2004 when she was sentenced to 3 years and 4 months’ H
imprisonment. She was last released from prison on 5
I
February 2015 after serving a 22 months’ sentence for I
possession of dangerous drugs and failing to surrender to
custody without reasonable cause.
J J
During her remand in the present case, D2 was sentenced to
detention in an addiction treatment centre for the offence
K of possession of dangerous drugs on 31 August 2016. K
Pursuant to section 6A(1)(b) of the Drug Addiction Treatment
L Centres Ordinance, Cap 244, should D2 be sentenced to L
imprisonment for a term of more than 9 months in the present
case, this detention order shall cease to have effect.
M M
D1’s mitigation
N D1 is 24 and he was 22 at the time of the commission of the N
offence. Mr Leung for D1 told the court that it is the
O defendant’s case that one-third of all the ‘ice’ trafficked O
was for his self-consumption. I indicated to Mr Leung that
I was inclined not to believe that assertion. I explained
P the basis for my inclination, which is that D1 had given P
evidence that was clearly inconsistent with the evidence of
the other defence witnesses, suggesting that he had not been
Q Q
a credible witness.
R The jury had, by implication of their conviction of D2, R
clearly disbelieved D1’s evidence that D2 had nothing to do
with the packet containing the drugs. I invited Mr Leung to
S consider asking if D1 would like to choose to go into the S
witness-box to put forward his case. Mr Leung told me that
he had taken specific instructions and D1 had decided he did
T T
not wish to go into the witness-box.
U U
CRT12/28.3.2017/LS 3 HCCC 345/2016(1)/Sentence
V V
A I then indicated to Mr Leung that while I am not prepared to A
accept that one-third of the drugs were for his self-
consumption, I am of the view that some of the drugs were in
B fact for D1’s self-consumption. The reasons for that view B
are as follows. A small portion of the ‘ice’ seized were
contained in a separate plastic bag which was taped to the
C C
outside of the cigarette box that contained the bulk of the
256.8 grammes of ‘ice’ and D1 was tested positive for
D amphetamine shortly after he was arrested for the present D
case. Mr Leung courteously noted my view but did not make
further submissions on that.
E E
D2’s mitigation
F F
Mr Alex Ng, with his usual fairness, accepted that he could
not put forward any meaningful mitigating factor. He agreed
G that a proper starting point would be 171 months’ G
imprisonment and that the sentence should be enhanced by 6
months for involving a cross-border element. He is also
H aware that the fact that this is the third conviction for H
trafficking in dangerous drugs for the 2nd defendant; it may
I
be counted as an aggravating factor. I
Sentence
J J
The maximum sentence on conviction on indictment for
trafficking in dangerous drugs is a fine of $5 million and
K imprisonment for life. K
L According to the case of HKSAR v Tam Yi Chun, the guideline L
tariff for trafficking of between 70 and 300 grammes of
‘ice’ is that of 11 to 15 years’ imprisonment.
M M
According to the case of HKSAR v Chung Ping Kwan where the
trafficking of ‘ice’ involved an international or cross-
N border element, the sentence should be enhanced. As a broad N
guideline for trafficking between 250 and 500 grammes of
O ‘ice’, the suggested level of enhancement is in the range of O
6 months to 1 year.
P The 1st defendant’s assertion of self-consumption P
In the case of HKSAR v Wong Suet Hau, the Court of Appeal
Q Q
gave guidance on how to deal with situations where it is
suggested in mitigation that, and I quote, “A significant
R proportion of the drugs was intended for” self-consumption R
and not for trafficking. I must look at all the
circumstances in order to decide whether or not to accept
S the defendant’s contention that most of the ‘ice’ was for S
his self-consumption. I then set out paragraph 34 of the
judgment, and I quote:
T T
“Arising from these considerations:
U U
CRT12/28.3.2017/LS 4 HCCC 345/2016(1)/Sentence
V V
A (1) Where after a plea of guilty to trafficking A
in dangerous drugs it is suggested in mitigation
that a significant proportion of the drugs was
B intended for the consumption of the defendant and B
not for trafficking, and where it is apparent from
the circumstances as a whole that the contention,
C C
if true, may well make a difference to sentence,
the sentencing court should address the issue.
D D
(2) Having regard to the dangers of the abuse of
this avenue of mitigation, the judge should look
E with the greatest care at all the surrounding E
circumstances in order to decide whether or not to
accept the contention.
F F
(3) In determining whether to accept the
G contention, the normal rules for determining the G
factual basis for sentence apply. The factors to
be considered will include (a) the quantity of
H drugs, and, if known, their value; (b) the general H
circumstances, including how the drugs are wrapped
I
and how many wraps or packets were found; (c) I
where the drugs have been discovered, whether at a
residential address owned or rented in the
J trafficker’s own name or in someone else’s name, J
or whether they were being carried in a public
place; (d) the presence of paraphernalia
K associated with drugs, including, on the one hand, K
items used for packaging, weighing and diluting
L drugs, and, on the other, items which are used for L
the consumption of drugs; (e) whether the
defendant is an addict or is otherwise accepted to
M have been a habitual user of the drug in question; M
(f) the explanation given by the defendant
following arrest; (g) the defendant’s general
N means and his ability to pay for his drugs N
otherwise than by trafficking in them; and (h) the
O defendant’s criminal record, if any, in relation O
to previous drug offences.
P Usually a court will be able to determine the issues P
on these factors without a Newton hearing.”
Q Q
In the case of HKSAR v Chow Chun Sang, the Court of Appeal
is of the view that, and I quote:
R R
“In drug trafficking cases, when all or part of the
drugs are intended for the trafficker’s own
S consumption, the ensuing discount to the sentence S
should, depending on the circumstances, fall somewhere
between 10 and 25 per cent of the basic starting
T T
point.”
U U
CRT12/28.3.2017/LS 5 HCCC 345/2016(1)/Sentence
V V
A In the case of HKSAR v Liu Ming Sze, that is CACC 103 of A
2016, the Court of Appeal confirmed that the Chow Chun Sang
range of 10 to 15 per cent discount will only be relevant
B after it is established that, and I quote, “a significant B
proportion” of the drugs involved were for self-consumption
as stated in the case of Wong Suet Hau.
C C
As mentioned above, despite the court’s invitation, D1 had
D chosen not to give evidence to put forward his case that D
one-third of the ‘ice’ were for his self-consumption. That
being the case, I proceeded to examine D1’s one-third for
E self-consumption claim with the available evidence. E
A very large quantity of ‘ice’ at 256.8 grammes was
F F
involved. Even at one-third that quantity, which is 85.6
grammes, it is still a very large quantity, a quantity so
G large that it would be highly unlikely that it would be for G
self-consumption.
H The packaging of the drugs was such that the bulk of the H
drugs were separated from a small packet of ‘ice’ taped
I
outside the cigarette box suggesting that only the smaller I
packet was for D1’s self-consumption. If D1 had intended
for one-third of all the drugs to be for his own
J consumption, given the fact that the bulk of the drugs were J
in one single packet, he would have had to separate the
drugs and take out his one-third. There is no reason for
K having a smaller packet taped on the outside. The only K
reasonable inference must be that the smaller packet was
L meant for D1’s self-consumption. L
There were no paraphernalia found on D1 associated with the
M consumption of ‘ice’. There is no evidence that such M
paraphernalia were found in D1’s home. Furthermore, D1 had
never been convicted of a possession of dangerous drug
N offence or an offence relating to the usage of dangerous N
drugs in the past six years, indicating that it is unlikely
O that he is an addict, and even more unlikely that he is such O
a serious addict as to require 85.6 grammes of ‘ice’ for his
self-consumption.
P P
D1 was working as an air-conditioner technician earning
around $15,000. It is unlikely that he would be able to
Q Q
purchase this much ‘ice’ on that kind of earnings otherwise
than by trafficking in them.
R R
As I had indicated earlier, I am prepared to, and do, find
that the small plastic bag of ‘ice’ that was attached to the
S outside of the cigarette box were possibly for D1’s self- S
consumption. I find, however, that since this small plastic
bag contained just 10.8 grammes of ‘ice’, being 4.2 per cent
T T
of the total seized, it did not amount to a significant
proportion of the trafficked drugs and the suggested range
U of discounts set out in Chow Chun Sang is not relevant. U
CRT12/28.3.2017/LS 6 HCCC 345/2016(1)/Sentence
V V
A A
Furthermore, given the small quantity and the fact that
possession of that quantity of ‘ice’ would still carry its
B own punishment, I find that there is no practical difference B
between sentencing on the basis that all the ‘ice’ were for
trafficking and on the basis that 10.8 grammes were for D1’s
C C
self-consumption.
D The starting point for both defendants D
A simple arithmetical application of the guideline tariffs
E to 256.8 grammes of ‘ice’ would lead to a starting point of E
171 months’ imprisonment. This is the starting point that I
adopt in relation to both defendants.
F F
Importation as an aggravating factor for both defendants
G G
For the aggravating factor of the drugs being brought across
the border from mainland China into Hong Kong, I will
H enhance the sentence by 6 months, leading to a sentence of H
177 months’ imprisonment.
I I
Previous conviction as an aggravating factor
J D1 J
In relation to D1, as I had mentioned above, his previous
K conviction for trafficking in dangerous drugs is a spent K
conviction. As such, it should not affect D1’s sentence.
L L
D2
M As for D2, I find that although her last conviction for M
trafficking in dangerous drugs was in 2004 and the
commission of the present offence in December 2015, this is
N still her third conviction for a similar offence and as such N
should be treated as an aggravating factor.
O O
It is trite law that the sentence for an offender with
similar previous convictions may need to be enhanced in
P order to deter and protect, and I quote: P
“There are many examples of this kind to be made and
Q Q
trafficking in dangerous drugs is certainly no
exception. If indeed there are any exceptions to the
R general rule that reoffending in the same or in similar R
way may aggravate the offence, at least so far as
sentence is concerned, this will have the result that
S the starting point which would have been adopted for a S
man of good character will sometimes need to be
increased to take into account the aggravating features
T T
of persistence and the failure of previous sentences to
deter on the one hand, and the court’s duty to protect
U the public on the other. The court in other words is U
CRT12/28.3.2017/LS 7 HCCC 345/2016(1)/Sentence
V V
A passing a deterrent sentence on the persistent offender A
from whom the public needs protection, which is often
unnecessary on the first or even sometimes a second-
B time offender. Much may depend on the gravity of the B
crime. The graver the crime, the more obvious becomes
the need for a deterrent sentence on repetition in
C C
order that the public are properly protected.”
D The above passage is taken from the case of HKSAR v Chan Pui D
Chi where the applicant was sentenced to 14 years’
imprisonment for trafficking in 260.77 grammes of heroin
E hydrochloride. There the court found that a sentence of 13 E
years’ imprisonment would have been more appropriate for the
quantity of drugs but refused to disturb the sentence after
F F
acknowledging that the trial judge was entitled to take into
consideration the criminal record of the applicant. There,
G the applicant had 22 previous convictions and had G
previously, in 1988 and 1992, been sentenced respectively to
5 years and 6 and a half years’ imprisonment for trafficking
H in dangerous drugs. His criminal record showed several H
other drug-related offences including others for
I
trafficking. The enhancement applied in Chan Pui Chi was I
therefore 12 months’ imprisonment or around 7.7 per cent.
J In our present case, this is D2’s third conviction for J
trafficking in dangerous drugs. There is however a time
lapse of some 11 years between the last and the present
K conviction. In order to achieve the desired deterrent and K
protection effect, I find that D2’s sentence should be
L enhanced by a further 6 months’ imprisonment. This would L
lead to a sentence of 183 months’ imprisonment for D2.
M Joint enterprise M
The defendants had committed the offence jointly. The fact
N that Ngo Wai-kuen, D2’s fingerprints were found on the N
adhesive tapes proves that she was very much involved in the
O preparation of the packet for importation into Hong Kong. I O
find the defendants equally culpable in the commission of
the present offence.
P P
I consider, however, that the sentence to be imposed on them
is sufficient to reflect their individual culpability and
Q Q
there should not be a further enhancement of the sentence on
the basis that the offence was committed by more than one
R person. R
Final sentence
S S
D1, Fung Wai-lung, is sentenced to 118 months’ imprisonment
or 9 years and 10 months’ imprisonment after granting him
T T
the full one-third discount for his plea of guilty.
U U
CRT12/28.3.2017/LS 8 HCCC 345/2016(1)/Sentence
V V
A The 2nd defendant, Ngo Wai-kuen Lai Lai, is sentenced to 183 A
months’ imprisonment or 15 years and 3 months’ imprisonment.
The 2nd defendant’s drug addiction treatment centre’s
B detention order imposed on 31 August 2016 shall cease to B
have effect.
C C
D D
E E
F F
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT12/28.3.2017/LS 9 HCCC 345/2016(1)/Sentence
V V