HKSAR v. MA KA HO

HCCC 438/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 438 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 has been convicted after trial on one count of trafficking in a dangerous drug. The Particulars of Offence provide that on 16 March 2015, near Lamp Post number FB 0610, Tai Shu Ha Road East, Yuen Long, New Territories, in Hong Kong, the defendant unlawfully trafficked in a dangerous drug, namely 5,928 grammes of a powder containing 3,261 grammes of ketamine.

Very briefly, at around 1.45 pm on 16 March 2015, the defendant was seen driving his sliver Mercedes-Benz car along Tai Shu Ha Road East in Yuen Long. He was the only person in the car.

The defendant was stopped by two police officers from Intelligence Team 3A of the Narcotics Bureau. The defendant was taken out of the car. Very soon thereafter, officers from Operations Team 3D of the Narcotics Bureau took over the case. One of them was DPC58500. According to the evidence of DPC58500, he searched the defendant and found on the defendant among other things, four mobile phones. DPC58500 also found a black bag on the front passenger seat of the Mercedes-Benz car. Inside the black bag were six transparent plastic bags containing a total of 5,928 grammes of powder containing 3,261 grammes of ketamine (with a street value of about $699,504).

In a subsequent video-recorded interview, the defendant admitted that he was delivering the drug for a man called Ah Ming for a reward of around $4,000 to $5,000.

By way of personal background, the defendant is 29 years of age. He was born in Hong Kong. He has completed education up to secondary Form 3 level. After leaving school, he had worked as a driver. He is married but with no children. The defendant has two previous convictions, one of which is for trafficking in dangerous drugs. That was in June 2010, and for which the defendant was sentenced to 2 years and 6 months’ imprisonment.

Mr Chau, on behalf of the defendant, realistically accepts that there is no mitigating circumstances in this case.

The narcotic involved in this case is 5,928 grammes of a powder containing 3,261 grammes of ketamine. The quantity of ketamine involved is indeed substantial, in fact way beyond the uppermost band of 1,000 grammes in the case of Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, which sets out the tariffs for trafficking in ketamine. In the Hii Siew Cheng case, the Court of Appeal held that for trafficking in over 1,000 grammes of ketamine, the proper sentence after trial should be 14 years upwards.

In HKSAR v Sin Chung Kin [2013] 1 HKLRD 627, the Court of Appeal, having considered the rate of enhancement of starting points for trafficking in large quantities of other dangerous drugs (such as heroin and ‘Ice’), made the observation that the appropriate starting points for trafficking in 2,000 and 3,000 grammes of ketamine should, respectively, be no less than 18 years and 20 years.

In the Sin Chung Kin case, the narcotics involved were 5.12 kilogrammes of ketamine and 18.8 grammes of cocaine. The Court of Appeal approved of the overall starting point of 22 years, noting that the starting point for trafficking in 18.8 grammes of cocaine alone could be as long as 6 years.

The analysis in the Sin Chung Kin case was reaffirmed by the Court of Appeal in HKSAR v Chow Yau Ching [2014] 2 HKLRD 639. At paragraphs 17 and 18 of its Judgment, the Court of Appeal expressly endorsed the view that when heroin traffickers were to be sentenced:

“there should be a meaningful distinction between the sentence for trafficking in only 600 grammes of heroin and that for trafficking in twice that quantity...”

The Court of Appeal made the point that the principles set out in the above quoted passage are applicable to trafficking in large quantities of any dangerous drugs, including ketamine.

In the Chow Yau Ching case, the Court of Appeal approved a starting point of 19 years and 9 months for trafficking in 2.89 kilogrammes of ketamine.

In the present case, the quantity of narcotic trafficked is 5,928 grammes of a powder containing 3,261 grammes of ketamine. Following the guidance given by the Court of Appeal in the authorities cited above, in my judgment, the appropriate starting point for sentence should be 20 years and 3 months’ imprisonment.

There being no mitigating factor to warrant any discount from the starting point, the defendant is accordingly sentenced to 20 years and 3 months’ imprisonment.