HKSAR v. KAM KWAI KIT

HCCC 435/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 435 OF 2014

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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 namely 84.33 grammes of a mixture containing 54.36 grammes of heroin hydrochloride.

On 12 May 2014 at about 4.10 am you were intercepted by police outside the Arrival Hall of Lok Ma Chau Terminal in Hong Kong, upon your arrival from Mainland China. A search was requested of you because you were suspected to be in possession of dangerous drugs. You told the officer you had dangerous drugs inside of your body and wished to defecate it.

You were then taken to the disabled toilet outside the Arrival Hall of the Lok Ma Chau Terminal where you discharged two pellets of dangerous drug found contained in condoms. When you were arrested and cautioned you said “This is ‘Sze Chai’. I did that just because I wanted to make money”.

The market retail value of the drugs was $64,428. The Immigration movement records showed you had left Hong Kong at 21:36 hours on 11 May 2014 and returned at 04:03 hours on 12 May.

You are 57 years of age. You have a total of 27 previous convictions, dating back to 1974. They are all primarily for offences relating to dangerous drugs. You have seven previous similar convictions, that is for trafficking of dangerous drugs, eight for possession of dangerous drugs and three relating to smoking or injecting dangerous drugs. Your last conviction was in March 2008 for trafficking in dangerous drugs for which you were sentenced to 3 years and 5 months’ imprisonment. You were released from prison in 2010.

Ms Carol Fung, your counsel, has mitigated fully and thoroughly on your behalf and I have taken into account all that she has had to say. I am informed that you had, in fact, stayed away from drugs since your release from prison and had become a casual worker. However, as a result of an injury sustained to your right foot at work and the injury not healing well, you resumed taking heroin to relieve the pain.

You have, since then, been unemployed and dependent on CSSA to which you were still dependent as at the date of this offence. I am informed by Ms Fung that in 2007, you were married. Your wife, a housewife, gave birth to a child in September last year. Ms Fung informs me that quite fortuitously you won $50,000 gambling and spent this money buying these drugs in Mainland. You then intended to bring them back to Hong Kong to sell to friends.

I have to say that I cannot accept that your winnings from gambling was how you had the ability to purchase the drugs,however that is not an issue to which is relevant to my sentence.

The Court of Appeal has set out sentencing guidelines for judges to follow when sentencing defendants in drug trafficking offences. The guidelines for heroin are set out in the case of R v Lau Tak Ming. The Court of Appeal also considered further guidelines for very large quantities in HKSAR v Abdallah.

In the Abdallah case, the court there also referred to aggravating factors which would enhance the starting point. It listed a number of aggravating factors and two of those are that of an international element involved in the commission of the offence and previous similar convictions. Both these aggravating factors are present in this case. There was an international element as you had transported these drugs across the border from China to Hong Kong. As to the previous similar convictions, you have seven previous similar and the last was in 2008, some 6 years ago.

Ms Fung has referred me to the case of HKSAR v Yau Ying Lung HCCC140/2012. As the court there had, for a similar amount of drugs, enhanced the starting point by 3 months in respect of the international element. For smaller amounts of drugs, the amount of enhancement is within the court’s discretion. In those circumstances, I will adopt a similar enhancement to that of Yau Ying Lung.

The quantity of drugs involved in this case is 54.36 grammes of heroin hydrochloride. This falls within the 8 to 12 years’ imprisonment band that covers trafficking in amounts between 50 to 200 grammes. I take a starting point of 8 years’ imprisonment, had you been convicted after trial.

In respect to the aggravating factor of an international element, I enhance that sentence by a further 3 months’ imprisonment. For the further aggravating factor of having similar previous convictions, I also enhance that term by a further 3 months’ imprisonment.

The sentencing point therefore is 8 years and 6 months’ imprisonment. Your greatest mitigating factor is, of course, your plea of guilty. I discount that by one-third to allow for your plea of guilty and therefore the resulting sentence is one of 5 years and 8 months’ imprisonment, to which you are so sentenced.