HKSAR v. KO MAN YIN

HCCC 141/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 141 OF 2015

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

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COURT: Ko Man-yin, you pleaded guilty on the first day of trial to one count of trafficking in dangerous drugs, contrary to section 4(1)(a) of the Dangerous Drugs Ordinance, Cap 134; and to one count of possession of dangerous drugs, contrary to section 8(1)(a) of the same Ordinance.

You did not do so at the first opportunity which would have been at the time you appeared in the Magistracy. Indeed, on Monday, you had instructed your counsel to seek an adjournment of the trial in order to adduce expert evidence of the scene of the carpark in which the dangerous drugs were found. You were going to allege that you knew nothing about the dangerous drugs in your car and that although they were found within it, the police had planted the drugs within your rucksack. You maintained that the CCTV had been edited and moneys spent on an expert analysis of that CCTV would show that it had been edited.

That would have been a very serious allegation to make against the police officers in this case, and it was only after some discussion that you reconsidered your position and decided to enter a plea of guilty. That was a very sensible approach to take.

Those allegations were clearly fabricated and a good deal of court time would have been thrown away on what you knew would have been a fruitless exercise. Only you know whether you are guilty of these offences, and by your plea you have admitted that is the case.

The facts of your offending have been reduced to a statement of facts which have been read out in court and which you have agreed. You owned the car with registration number LZ3875 which was situated in the Skye Carpark in San Wan Road, Sheung Shui on 16 August 2014. Although you left the keys to your car on the wheel under the wheel hub, you have accepted that the drugs found within a rucksack inside the car on that day and which were on the rear seat were yours. Inside that rucksack was found 57 packets containing a total of 320.5 grammes of ketamine and some more ketamine was found in a concealed compartment below the gear lever, but this was just 3.02 grammes in all, and for that the prosecution have charged you with possession under Count 2.

The street value of the drugs was approximately $52,000 at the time.

You are 38 years of age, married and with a baby daughter who is now 20 months old. She had just been born when you were arrested, and you have been in custody since that date. That must have been very difficult for you and for your wife. You have an extensive criminal record dating back to 1993 when you were just 15 years of age. You have previously been dealt with for possession and for trafficking of dangerous drugs and you have received two sentences of imprisonment, but they were some years ago. You were last released from prison on 26 April 2010 and you had not been in trouble for some seven years so I will not hold those matters against you when dealing with you for these offences.

I have listened very carefully to everything that Mr Kwok has said on your behalf, including your desire to assist the police, which is to your credit. Although that is only an indication of willingness to assist at this stage and therefore no credit can be given to you when considering sentence today.

I have read the letter from your wife and I have heard about the contents of the letter which you have written to the court in Chinese. Mr Kwok submits on your behalf that you are not a drug addict and that you turned to this offending as a result of pressure arising from the fact that you had only just heard that your mother had breast cancer the day before this offence and that you were under pressure saving for a wedding feast.

I have every sympathy for your mother who was having a very difficult time between her bankruptcy and her cancer, but that is no excuse for what you did. You have let her down and you have let your wife down very badly as they can no longer rely upon your financial support. I am told by Mr Kwok that you had a proper job at the time and therefore you did not commit these offences in order to survive, nor, as I have mentioned, were you committing this offence to feed your own habit. I must therefore conclude that this was a cynical commercial enterprise, no more, no less.

Mr Kwok asked the court to give you a further discount on the basis that some part of the drugs represented in Count 1 would have been for self-consumption. There is absolutely no evidence in support of such a contention. Quite the contrary given that you have never suggested at any stage that you were in the habit of consuming ketamine. You may have done so in the past but that does not support the suggestion that you were doing so in 2014.

He prayed in aid on your behalf the judgment of Mrs Justice Barnes in HKSAR v Wong Kin Hing HCCC 12/2014. I do not know why he chose to do so. There are no parallels with the case before me. There is no explanation at all within the case as to why the learned judge chose to give extra discount for self‑consumption, but I can see from reading the facts that the defendant in that case suggested that he was consuming the drugs upon arrest. I note that the ketamine recovered was not divided into several small packets for onward sale but was found in three packets containing several grammes. The police also found paraphernalia at his home address of drugs consumption, and his antecedents statement said he was a drug addict.

It would have been wise for Mr Kwok to have addressed this submission to prosecution counsel before he made it, because there are occasions when the prosecution will concede the point. That was not the case here. Mr Percy submitted that there was no such concession and no evidence to indicate it would be a proper concession to make, and I agree with him.

As to Count 2, both counsel agree that the tariff for simple possession is between 12 and 18 months with Mr Kwok urging the court to take the former figure.

Mr Ko, these are very serious matters. It has been said by the Court of Appeal on many occasions that there is little personal mitigation which can reduce the sentence which the court must ordinarily pass, and that is the case here.

For trafficking in ketamine, the sentencing guidelines after trial are set out in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1. For between 300 grammes and 600 grammes, the starting point after trial is 9 to 12 years and therefore for trafficking in 320.5 grammes of ketamine the starting point after trial is 9 years and 3 months. I have not read or heard anything which suggests I should depart from that figure in this case. You have pleaded guilty, albeit very late in the day, but I will give you a one-third discount for that plea and you will go to prison for 6 years and 2 months on Count 1.

For the possession of the 3.02 grammes of ketamine, if this had been added to the quantity of drugs at Count 1, it would not have affected the sentence I have passed on that count, and so I sentence you to 12 months on Count 2 after discount to run wholly concurrently with the sentence which I have passed on Count 1.

You will go to prison therefore for 6 years and 2 months in all.