HKSAR v. WONG TSZ KWAN

HCCC 414/2017

[2018] HKCFI 965

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 414 OF 2017

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

The defendant pleaded guilty before a magistrate to one charge of trafficking in a dangerous drug and was committed to the Court of First Instance for sentence. In sentencing, I have considered the whole circumstances of the case, including its nature and facts, in particular, the type and quantity of the dangerous drugs involved, background of the defendant and mitigation put forward on her behalf.

The facts of the case are simple. The defendant was stopped by customs officers at the arrival hall at the Lok Ma Chau Control Point when she was returning from the mainland. In her handbag, officers found a plastic bag containing ketamine which was put inside two layers of plastic bags as well as a bank note and a sheet of paper containing traces of ketamine. A small quantity of ketamine was also found from the bra the defendant was wearing. She said the three batches of drugs were for her own consumption.

The total quantity of the dangerous drug was 493.58 grammes of a powder containing 356.74 grammes of ketamine. The retail value was around $107,000.

I was told that the defendant is 31 years of age. She is single. She received education up to Form 3 and had worked as a bookkeeper in a fish stall run by her family and as a staff of customer service. She had a clear record before. Learned counsel for the defence, Mr James Cheng, urged the court to take into account that the defendant had not committed any offence before, she pleaded guilty at the earliest opportunity, and is now full of remorse as indicated in the letter she wrote to the court. He also told the court that the defendant had started to abuse drugs after she had broken up the relationship with her boyfriend who had great influence on her, in particular, as she had received little education.

The narcotic content of the ketamine the defendant trafficked in was 356.74 grammes. The Court of Appeal suggested in the case of SJ v Hii Siew Cheng [2009] 1 HKLRD 1 that a sentence of 9 to 12 years' imprisonment should be considered for trafficking in ketamine if the narcotic content is 300 to 600 grammes. In all the circumstances, I do not find there are good grounds to depart from the tariff.

I have to take into account the fact that the defendant brought the dangerous drugs into Hong Kong. In this regard, the submission of Mr Cheng is that owing to the geographical proximity between the mainland and Hong Kong, despite it is an aggravating factor to bring drugs into Hong Kong, bringing drugs into Hong Kong from China is not as serious as bringing drugs from a foreign country. In my judgment, the difference as mentioned by Mr Cheng has no substantial impact on the sentence. I consider an enhancement of 6 months appropriate to the present case.

In all the circumstances, I adopt an ultimate starting point of 10 years. The defendant is entitled to a one-third discount for her guilty plea and previous clear record.

The defendant claimed that some of the dangerous drugs seized were intended for her own consumption. But as Mr Cheng said in his submission, the defendant is not able to specify the quantity for this purpose. In this connection, I have had regard to HKSAR v Wong Suet Hau [2002] 2 HKLRD 1121, and HKSAR v Tan Xiu Yun [2015] 5 HKLRD 872. Whilst I am prepared to accept that some dangerous drugs was intended for own consumption by the defendant, nevertheless the quantity intended for this purpose would be small, in any case, my assessment is that the latent risk was very high. I also have to take into account that even for the offence of possession of dangerous drugs, a sentence of a custodial nature would be imposed. In the circumstances, I am prepared to give the defendant a further discount of 2 months. Having regard to the whole circumstances, including what learned counsel said on her behalf, in my judgment, this is the extent of discount the defendant is entitled to.

For the reasons I have just mentioned, I sentence you to an imprisonment term of 6½ years.