HKSAR v. LEUNG LOK YI AND ANOTHER

HCCC 400/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 400 OF 2015

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

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COURT:

1st defendant and 2nd defendant, you have pleaded guilty to separate charges on the indictment of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance. The 1st charge is against the 1st defendant only and the 2nd charge is against the 2nd defendant only. The date of the offence and the drugs concerned are exactly the same in both charges. It is only the place or the location at which the offence took place is different.

Defendants, you have pleaded guilty to trafficking in dangerous drugs on 6 May 2015, to unlawfully trafficking in 4,488 grammes of a powder containing 2,898 grammes of ketamine and 2.78 grammes of a crystalline solid containing 2.74 grammes of methamphetamine hydrochloride.

1st defendant, your offence was committed at the Lok Ma Chau Spur Line Control Point in the New Territories.  2nd defendant, your offence was committed outside Landmark North, Sheung Shui, in the New Territories.

1st defendant on 6 May at about 10.55 am you entered Hong Kong from the mainland via the Customs Arrival Hall at the Lok Ma Chau Spur Line. You were intercepted by the Custom Officers and upon search of your backpack, the drugs as stated in the charge were found inside one yellow plastic bag and one red plastic bag containing other smaller plastic bags within the yellow and red plastic bag.

You were arrested and cautioned for trafficking in dangerous drugs you told the Custom officers that somebody had put the two plastic bags into your backpack earlier but you did not know him.

That same afternoon, you agreed to co-operate with the Customs officers and participated in a controlled delivery after you had received a number of phone calls. You were then escorted by Customs officers in a government-owned red taxi to the Landmark North in Sheung Shui. Whilst in the taxi, you pointed out the 2nd defendant as the man who had supplied you with all the drugs in the mainland. When the taxi that you were a passenger of drove close to the 2nd defendant, you passed him the red plastic bag containing all the dangerous drugs through the window of the taxi. As soon as the 2nd defendant received the red plastic bag, a Customs officer immediately went to intercept him. Despite attempting to flee away, the 2nd defendant was subdued.

Upon apprehension, the 2nd defendant admitted knowing the bag contained two lots of ketamine. He admitted he was only a worker expecting to receive $700 as a reward and that he was waiting for a phone call to hand over the drugs to another person called “Kwai Lo”.

The seized dangerous drugs had an estimated street value of $570,000 for the ketamine and $1,000-odd for the ‘Ice’.

1st defendant, your counsel, Miss Vivian Wong, has mitigated on your behalf and the 2nd defendant, Mr Albert Poon, your counsel, has also made mitigated on your behalf. I have taken into account all that they have said.

I turn first to deal with the 1st defendant. 1st defendant, you are 21 years of age. At the time of the offence, you were aged 20. You have never been convicted of a criminal offence in Hong Kong. Miss Wong has given me a very thorough in-look to your background. At the time of commission of this offence, you were a student at the Vocational Training Centre. You were studying hotel management and hospitality.

I have also had submitted to me various certificates and awards when you were younger and at school. You come from a broken family; you have been brought up by your maternal aunt whom you love and treats you well and who is, unfortunately, now suffering from stage three ovarian cancer.

I have received a very heartfelt letter from you telling me how you appreciate your family very much and are deeply remorseful for committing this offence. I have also received a letter from the minister of the youth fellowship team. That is from your church and your former school teachers. Clearly, all along you have been well liked and this offence, as Miss Wong has said, is very much out of character.

No doubt here, you have been influenced by an undesirable peer who has tempted you with the money to be offered should you have completed this offence. I am informed that you would have only received a reward of $600. That is a very small reward for the severe penalty that you will pay.

Nevertheless, clearly, by your plea of guilty, you have shown your deep remorse and since your arrest, you have assisted the authorities in participating in a controlled delivery to which the 2nd defendant was eventually arrested. Over and above, the 2nd defendant was going to dispute the facts of this case and I am informed that you have assisted the police by giving a non-prejudicial statement and would have given evidence against him in the Newton Inquiry. That Newton Inquiry was scheduled yesterday and you were here in court. However, the 2nd defendant then decided not to have a Newton Inquiry. It was at this hearing, you would have given evidence against him.

I have been referred to the various authorities as mentioned by Miss Wong. That is Chow Yau Ching, CACC 517/2012, for trafficking in this quantity of drugs, and also the case of HKSAR v Ng Shek Yu, CACC 178/2000, for the requisite discount to be given for assisting the authorities.

Before I turn to sentence you, I shall just deal with the 2nd defendant’s mitigation.

2nd defendant, you are 28 years of age.  You had four previous convictions, two of which are related to drugs, which are for possession of dangerous drugs.  You were a casual construction site worker and were contributing to the livelihood of your mother.  Since your arrest for this offence, your mother is now relying on CSSA.  You had attended a drug abstinence program. 

In view of your unstable work, you participated in this offence for quick money. I am informed that you had been attending church well before the commission of this offence and, in fact, two members of the church are here in court today to support you. Your greatest mitigating factor, together with the 1st defendant’s, is of course your plea of guilty.

Mr Poon has also relied on the case of Chow Yau Ching. Chow Yau Ching had considered the case of Sin Chung Kin where, in Sin Chung Kin, the Court of Appeal recognised that the appropriate starting point for trafficking in 2,000 and 3,000 grammes of ketamine should respectively be no less than 18 years and 20 years. In fact, in the case of Chow Yau Ching, the quantity of ketamine involved in that case was 2,891.49 grammes which is only slightly different from the quantity in this case.

In this case, the amount of ketamine is 2,898 grammes, a difference of a small amount of 6.51 grammes. The Court of Appeal held in Chow Yau Ching that the appropriate starting point for 2,891.49 grammes of ketamine, which was not wrong in principle or manifestly excessive, was one 19 years and 9 months’ imprisonment.

Miss Wong has asked me to differentiate Chow’s case with the present case for her client, the 1st defendant, in that, in Chow’s case, the defendant there had previous convictions and had one similar for trafficking. I do not propose to depart or differentiate Chow’s case with the present case in terms of the starting point as there is nothing in Chow’s case to show that the 19 years and 9 months takes into account any aggravating factor for a previous similar conviction. Further, the case of Sin Chung Kin clearly states the appropriate starting points for large amounts of ketamine as I have stated earlier.

In this case, the 1st defendant has assisted the authorities. Miss Wong has referred me to the case of Ng Shek Yu where the court, in that case, held that they had on previous occasions stated that, in similar circumstances, a discount of between 40 to 45 per cent will usually be appropriate.

I consider a discount to be appropriate in this case for the reasons that the defendant participated in a controlled delivery and on top of which, she was willing and ready, save for the very last-minute change of heart by the 2nd defendant, willing to give evidence against him in a Newton hearing. On that basis, I consider that a discount of just under 43 per cent would be appropriate.

Let me deal with the 1st defendant on the 1st charge. 1st defendant, had you been convicted after trial, I would have taken a starting point of 19 years and 9 months’ imprisonment. You had brought these drugs into Hong Kong from China; that is clearly importation and as stated in Abdallah, an international element is involved and the courts will therefore consider that as an aggravating factor calling for the enhancement of the starting point. As you had imported almost 3 kilogrammes, the enhancement will be one of 2 years’ imprisonment. That would make a sentencing point of 21 years and 9 months’ imprisonment.

As I mentioned, giving you your discount of just under 43 per cent, which is inclusive of the one-third discount for your plea of guilty, the resulting term to which you shall serve and be sentenced is one of 12 years and 7 months’ imprisonment.

2nd defendant, I adopt the same starting point as I do for the 1st defendant. That is 19 years and 9 months’ imprisonment. Although the 1st defendant said you gave her the drugs in China, there is no (admissible) evidence against you in this case that you had imported these drugs hence there is no aggravating factor. The starting point will be one of 19 years and 9 months’ imprisonment.

Your greatest mitigating factor is your plea of guilty and you shall therefore be afforded the one-third discount and the resulting sentence is 13 years and 2 months’ imprisonment.

Let me just say, sorry, which I forget to mention, was that in respect of the ‘Ice’ of which there was 2.74 grammes, for that amount of ‘Ice’, the appropriate sentence would have been 3 years and 3 months’ imprisonment for trafficking in that amount. In using the conversion from ‘Ice’ to ketamine, that would be equivalent to about 7 grammes of ketamine. In adding 7 grammes to 2,898 grammes would be 2,905 grammes of ketamine which would be the amount you would be sentenced upon. It does not affect the starting point and I would still have taken a starting point of 19 years and 9 months’ imprisonment.