HKSAR v. LEUNG KA NING

HCCC 320/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 320 OF 2015

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT:

The defendant, Leung Ka-ning, faced two counts of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 -that is the 1st and 2nd count - and one count of possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the said Dangerous Drugs Ordinance.

The defendant pleaded guilty before me and after admitting to the Summary of Facts, I found him guilty of all three counts as charged.

Summary of Facts

On 11 January 2015, a private car carrying seven passengers was selected for customs clearance at the Shenzhen Bay Control Point. One of the passengers (we will call him “the man”) was carrying a rucksack. A search of this man’s rucksack yielded what was later confirmed to be 3.42 kilogrammes of a powder containing 2.59 kilogrammes of ketamine with a street value of $430,020.

A “controlled delivery” was conducted and the defendant appeared and approached the man and after uttering a code, “yum cha”, the man passed the rucksack containing the ketamine to the defendant. The defendant was then arrested. Under caution, the defendant admitted the rucksack contained ketamine which belonged to him for distribution.

A search was conducted at the defendant’s home at Room B, No 85 Yuen Kong Tsuen. The defendant directed the Customs officers to a drawer under the television set. The Customs officers found a sealing machine, a set of electronic scale, some zip-lock bags and 68 packets of suspected dangerous drugs inside the drawer. Of the 68 packets, one was confirmed to be containing 3.02 grammes of a crystalline solid containing 2.99 grammes of methamphetamine hydrochloride. The other 67 packets were confirmed to be containing 1,268.22 grammes of a powder/solid containing 992.36 grammes of ketamine.

The dangerous drugs seized in the defendant’s premises had an estimated retail value of $161,079.22.

The defendant admitted the dangerous drugs inside the drawer belonged to him. He trafficked all the ketamine found in this case and he possessed the ‘Ice’ found inside the drawer.

The defendant is 23 years of age with one previous conviction of conspiracy to common assault. He is single and his parents are divorced. He dropped out of school while studying in Form 3 and had worked as a bartender and in a kitchen.

Mr Newman Wong, mitigating on the defendant’s behalf, informed me that the defendant incurred over $100,000 in debt and was lured to commit the present offences due to his financial situation. Mr Wong referred me to the case of HKSAR v Chow Yau Ching [2014] 2 HKLRD 639, in which I gave judgment for the Court of Appeal regarding an appeal against sentence, and asked me to consider the total amount of ketamine in both the 1st and 2nd counts to reach a starting point for the trafficking offences. Mr Wong also accepted that as far as the 1st count was concerned, there was an international element involved, justifying an enhancement.

Mr Wong also asked me to consider ordering the sentence to be imposed on the possession charge to run concurrently with the trafficking charges due to the small amount of ‘Ice’. Mr Wong also informs me that the defendant is remorseful for having committed the present offences and asked me to give the defendant the full one-third discount upon his plea.

Trafficking in a dangerous drug is a serious offence. A person convicted on indictment of trafficking in a dangerous drug is liable to a fine of $5 million and to imprisonment for life. The defendant was convicted of two counts of trafficking in a dangerous drug, that is the 1st and 2nd counts.

In the circumstances of the present case where both offences were committed on the same day and the facts were closely linked, in that the dangerous drug in the 1st count was obviously connected with the dangerous drug in the 2nd count, a proper approach is to have regard to the total amount of dangerous drugs in both the 1st and 2nd counts to arrive at an overall starting point. The authorities are HKSAR v Chow Yu Chi, CACC 359/2000, and HKSAR v Cheung Kwok Leung [2003] 3 HKLRD 542 and HKSAR v Wong To [2001] 4 HKC 499.

In Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, the Court of Appeal set down guidelines for the trafficking of ketamine. The ketamine involved here amounts to 3,582.36 grammes so it is within the band for over 1 kilogramme with a starting point from 14 years upwards. In the case of HKSAR v Sin Chung Kin, CACC 458/2011, Yeung VP, giving the judgment of the court, said at paragraph 27:

“The longest sentence in the guidelines laid down in Hii Siew Cheng is 14 years’ imprisonment for trafficking in 1,000 grammes of ketamine. However, if one follows the rate of enhancement of sentences as is apparent from Lau Tak Ming and Ching Kwok Hung, then for trafficking in 2,000 grammes and 3,000 grammes of ketamine (which respectively doubles and triples the 1,000 grammes which attracts 14 years’ imprisonment), the appropriate starting points should respectively be no less than 18 years and 20 years.”

In Chow Yau Ching, the Court of Appeal made it clear that Sin Chung Kin did not revise any sentencing guidelines but rather, having considered the rates of enhancement of starting point for trafficking in large quantities of other dangerous drugs such as heroin and ‘Ice’, made the observation that the appropriate starting point for trafficking in 2,000 and 3,000 grammes of ketamine should respectively be no less than 18 and 20 years.

The Court of Appeal also endorsed the view that there should be a meaningful distinction between a sentence for trafficking in a particular quantity of dangerous drug and trafficking in twice that quantity. There should also be a distinction between a sentence where there were other aggravating factors and a sentence where there were none.

Having considered all the circumstances of this case and the defendant’s background, I am of the view that the appropriate starting point for the trafficking of ketamine is one of 21 years.

Although the defendant did not physically bring the ketamine into Hong Kong, he was the receiver after someone else had brought the dangerous drugs in from the mainland and a controlled delivery was conducted, so there was an international element involved, justifying an enhancement of the sentence, and the cases of HKSAR v Abdallah [2009] 2 HKLRD 437 and HKSAR v Hong Chang Chi [2002] 1 HKLRD 486, these are on the enhancement issue.

Bearing in mind that the ketamine is less harmful when compared with heroin or ‘Ice’, this case should not attract the same level of enhancement as indicated in Abdallah. I am of the view that an enhancement of 1 year is appropriate here. The defendant tendered a timely plea and will be given a full one-third discount for these two counts.

As for the possession of 2.99 grammes of ‘Ice’, I am of the view that an appropriate starting point is one of 18 months. Again, the defendant had tendered a timely plea so he is entitled to a full one-third discount.

So the sentence to be imposed for the three charges are: 1st count, 14 years and 8 months’ imprisonment; 2nd count, also 14 years and 8 months’ imprisonment. The 3rd count is 12 months’ imprisonment.

I now have to consider the question of totality. The sentences for the 1st and 2nd counts clearly are to run concurrently. Even though the dangerous drug found in the defendant’s possession was ‘Ice’ and not ketamine, having taken into consideration that if the defendant was charged with and pleaded guilty to trafficking that amount of ‘Ice’ together with the ketamine found at his premises, that is Count 2, the ‘Ice’ would not have made any difference to the sentence to be imposed. I therefore order that the sentence imposed on the 3rd count is to run concurrently with the sentence imposed on the other two counts.

The defendant will therefore have to serve a total of 14 years and 8 months’ imprisonment.