HKSAR v. YEUNG CHEUNG KWAN

HCCC299/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 299 OF 2009

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

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COURT:  You appear in this court today to be sentenced following your committal after your plea of guilty in the Magistrates' Court.  In this court you have confirmed, as a basis of the court's acceptance of your plea of guilty and the basis upon which you are to be sentenced, the Summary of Facts that you accepted in the Magistrates' Court.  The single charge that you face is one of unlawful trafficking in a dangerous drug, namely 226.55 grammes of a powder containing 191.9 grammes of ketamine.

     I turn then to the facts.  Shortly after 4 am on the morning of 23 May 2009 you were intercepted by police officers outside the Ground Floor of Tak Lee Building, 993 King’s Road, in North Point, in which building you yourself resided in room 6, on the 1st floor.  A search of your person revealed the presence of two transparent plastic bags, containing what on examination was revealed to be ketamine.  The bags were concealed beneath your clothing in the area next to your abdomen.

     Having been cautioned for the offence of unlawful trafficking in dangerous drugs you said, "I carried them for others.  I earn a little from two packets of 'K chai'."  Following your arrest for that offence, and after caution, you said, "Ah Sir, please give me a chance.  I am now studying and have no money to spend, that's why I carry 'K chai' for others to earn money."  The search of your room revealed the presence of a pile of transparent plastic bags in your bedroom.

     In a record of interview conducted of you at North Point Police Station, you admitted that you had collected the drugs from an unknown man in the vicinity of Langham Place, in Mongkok earlier that evening, at about quarter to 4 in the morning.  You said that for the promised reward of $2,000 you were to collect the dangerous drugs, take them to your home, repackage them into ½ ounce quantities and return them to Ah Wai at his direction.  Of the fact that the transparent plastic bags found in your bedroom were too small for that purpose, you said that you intended to buy larger plastic bags and an electronic scale.

     I turn then to mitigation.  At the time of the commission of the offence you were 17½ years of age.  Today you are 18 years and two days' old.  Having completed form 5 in 2008, at Li Fook Hing Secondary School, you were undergoing a one-year course for a certificate in disciplinary forces at Lingnan Institute of Further Education.  After finishing school you had worked for a few months as a hairstylist.  You have no criminal record.

     I turn now to consider the appropriate sentence to be imposed upon you.  Although Mr Raffell has not urged this course on me, in the first place I have considered whether or not you fall into the "rare category" of cases in which substantial quantities of dangerous drugs are unlawfully trafficked, but nevertheless, it is appropriate that in order that you be detained in a training centre rather than be subjected to a substantial term of imprisonment is appropriate.  In doing so, I have had regard to the judgments of the Court of Appeal in Attorney-General v Suen Yuen Ming 1 HKC 430, Attorney-General v Kong Kin Man [1997] HKLR 350, The Secretary for Justice v Ko Fei Tat [2002] 4 HKC 59.

     Of the factual basis of the commission of this offence, it is to be noted that your role involved a number of steps.  You had collected the dangerous drugs, you were to repackage them to make them more easy to sell and you were to redeliver them.  You were to do all of that for the not insignificant sum of $2,000.  Although you were only 17½ years of age at the time of the commission of the offence and you had no criminal conviction, I have no doubt that you do not fall into that "rare" category; that is of cases where sentence other than one of a substantial period of imprisonment is appropriate.

     I turn now to a determination of the appropriate starting point for sentence.  In the judgment of the Court of Appeal in the Secretary for Justice v Hii Siew Cheng delivered in June 2008, [2009] 1 HKLR 1, guidelines for sentencing, after trial, in respect of unlawful trafficking in ketamine and ecstasy were provided.  Unlawful trafficking in amounts in the band of 50 to 300 grammes attracts sentences in the range of 6 to 9 years' imprisonment.

     In the judgment of the Court of Appeal in HKSAR v Abdallah [2009] 2 HKLR 437, the court was dealing with supplementary guidelines for sentencing for unlawfully trafficking in heroin.  In the course of the judgment of the court delivered by Stuart-Moore VP, the limits of the applicability of factors otherwise relevant to mitigation were considered in the context of the "Grievousness of the offence".  Of unlawful trafficking in dangerous drugs the Vice-President observed, at paragraph 32, at page 451:

"Meaningful mitigation, apart from the plea of guilty, is rarely available.  The message must consistently be delivered, even to the vulnerable, such as the relatively young and those who say they need money whether for themselves or for the benefit of family members who are ill, that the vast majority of vulnerable people do not succumb to pressure and do not resolve their problems by engaging in this illicit and dreadful trade."

Whilst the Vice-President was dealing there with unlawful trafficking in heroin rather than ketamine, the sentiment, nevertheless, holds good in your case. 

      Having regard to your age at the time of the commission of this offence, the fact that you had no previous convictions and the fact that you had achieved a great deal up until that point in life and that this therefore represents, albeit a mistake, a first mistake, I have been persuaded by Mr Raffell to take a lower starting point than I was minded to take when I entered this courtroom.  I take a starting point of 7 years' imprisonment.

I turn then to the question of discount.  In light of your plea of guilty at the earliest possible opportunity, you are entitled to a discount of one-third taken as the starting point.  Accordingly, you are sentenced to 4 years and 8 months' imprisonment.