HKSAR v. KWAN WING YAN

HCCC286/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 286 OF 2009

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

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COURT: Kwan Wing-yan, you have been committed to this court for sentence following your plea of guilty to trafficking in 363.53 grammes of a powder containing 282.35 grammes of ketamine. Those drugs were taped to each of your thighs when you entered Hong Kong from the Mainland at Lok Ma Chau on 8 April this year. The retail value of the drugs in Hong Kong at that time was about HK$42,000.

  The story you told the Customs Officers at the time of your arrest was that a woman on the Mainland had helped you pack and attach the drugs to your body and that you intended to repack them and sell them to friends in Hong Kong. You said that you had not yet been required to pay for the drugs but that the sale proceeds would be divided in the ratio of 60:40 and that you would obtain $4,000.

  Today, Mr Ma, your counsel, has told me that this was not a true version of what occurred but simply what you were told to tell the authorities if you were arrested by the person who sent you to the Mainland. I have been told that the truth is that you had been asked by a man called Ah Lo, whom you had met a number of times in a cyber café and who knew that you often visited the Mainland, to bring back drugs from the Mainland for him.

  Although you had not yet promised to accede to his wishes, he rang you when you got home and said that if you failed to co-operate, you could not blame him for anything that might happen to your family later. You therefore went to the Mainland on his instructions. You had not been promised any reward. How far this account is true I do not know, but I am prepared to accept that you were simply acting on somebody else's instructions in bringing back the drugs into Hong Kong and that your reward, if any, would have been very small.

  Drug trafficking is an evil business, so evil that the Court of Appeal has said that those who traffic in between 50 to 300 grammes of ketamine should expect to receive sentences of between 6 to 9 years' imprisonment after trial. In your case you were still 17 at the time you committed this offence. You had never been convicted of any offence previously. I bear in mind that you had not had the advantage of a normal family background and a normal education. While these may be powerful mitigating factors if some other offences were involved, they can only have limited significance in an offence of this gravity.

  I have taken into account that you have offered to co‑operate and be a witness if Ah Lo is located. A promise, however, cannot amount to significant mitigation so long as it is simply a promise. If Ah Lo is subsequently arrested and you fulfil that promise, then that is a matter that can be considered by the Executive. A serious aggravating feature of this case is that you were bringing the drugs into Hong Kong from the Mainland.

  Bearing in mind your role in this offence, a simple courier of young age being used by others, I am prepared to adopt a preliminary starting point at the bottom of the tariff band; that is 6 years' imprisonment. However, the fact that you were bringing the drugs into Hong Kong is an aggravating feature and for that reason I adopt an ultimate starting point of 7 years' imprisonment. You have pleaded guilty at the first opportunity and are therefore entitled to the usual discount of one-third.

  I accordingly sentence you to 56 months' imprisonment, 4 years, 8 months.