HKSAR v. HEUNG CHAI

HCCC25/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 25 OF 2009

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

COURT:  The defendant was born in Thailand on 2 July 1990 and now lives with his mother, father and sister at the Lai Kok Estate in Sham Shui Po.  He is not yet 19 years of age. 

On 9 January of this year, he appeared before Mr W Lam, Magistrate, at the Eastern Magistrates Court, where he faced two charges of trafficking in dangerous drugs.  Those charges were contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.  On that day, he pleaded guilty to both charges and admitted the Summary of Facts which had been prepared by the prosecutor and was read in open court.  The magistrate then committed the defendant to this court for sentence. 

The particulars of the 1st charge that the defendant admitted that on 28 September 2008 outside Room 1120 Lai Lo House, Lai Kok Estate, Lai Chi Kok Road, Sham Shui Po and that the defendant trafficked in a dangerous drug namely one plastic bag containing 36.14 grammes of a powder containing 28.24 grammes of ketamine. 

The particulars of the 2nd charge allege that the defendant, on 28 September 2008, inside Room 1120, Lai Lo House, Lai Kok Estate, Lai Chi Kok Road, Sham Shui Po trafficked in a dangerous drug namely three plastic bags containing 649.85 grammes of a powder containing 513.62 grammes of ketamine. 

Today before me, the defendant has confirmed those pleas of guilty.  The Summary of Facts which he accepted when read before the magistrate was again confirmed by him today as being accurate. 

That Summary of Facts reveal that on 28 September of last year, police officers were on patrol at Lai Lo House in the Lai Kok Estate in Sham Shui Po.  Sometime around 10 pm, they were on the 11th floor when they saw the defendant come out of Room 1120 and walk towards the lift lobby.  He was intercepted and, when questioned, confirmed that the room from which he had just exited, which was Room 1120, was where he lived.  He was, he said, on the way to look for a friend. 

He was searched by the police officers and in his right trouser pocket, a bag which the police suspected contained ketamine, was found as was a bunch of keys. 

He was arrested and cautioned, after which he said to the police officers, "Sir, those 'K-chai' are only for my consumption.  Give me a chance." 

The police gained access to the accommodation at Room 1120 where the defendant's parents and younger sister were found inside the living room.  The police officers searched those premises and they found in a box in the defendant's bedroom, three plastic bags which contained a powder they suspected to be ketamine.  A further caution was administered to the defendant upon this finding.  The defendant replied, "Sir, the 'K-chai' are mine.  It has nothing to do with my father, mother and younger sister." 

As I indicated earlier, the police suspected that the drugs contained in the package inside the defendant's trouser pocket and the drugs contained in the packages inside his bedroom were ketamine and that suspicion was subsequently confirmed to be correct by an analysis of the contents of those packages. 

The drugs that were found on the defendant outside Room 1120 when he was first detained consisted of 36.14 grammes of a powder containing 28.24 grammes of ketamine.  The drugs found in the defendant's bedroom consisted of 649.85 grammes of a powder containing 513.62 grammes of ketamine. 

When first apprehended by the police, the defendant accepted that all of the drugs belonged to him but insisted they were for his own consumption.  The defendant now accepts that, in fact, he possessed these drugs for the purposes of trafficking. 

The total quantity of ketamine is 541.86 grammes which has, it has been accepted, a retail value of $80,260.00.

In mitigation on behalf of the defendant, Mr Jim emphasises the fact that he is 18 years of age and he comes from a stable family background.  He has been educated up to Form 3 only; has had no real significant fulltime employment history; he is himself a drug addict; and that, on this occasion, because he was in need of money, he succumbed to the temptation to be involved in trafficking in drugs.  Other than that, Mr Jim indicates that his father is in court today to show support for his son. 

The background to the defendant reveals nothing untoward in terms of previous misconduct, albeit that he had been placed on probation in 2006 for an offence of common assault.  And suffice it to say for the purposes of sentencing, there is nothing exceptional in the circumstances of this defendant or the circumstances of the commission of the offence. 

On 6 June this year, the Court of Appeal set new sentencing guidelines for those convicted of trafficking in ketamine and "ecstasy".  In the course of setting those guidelines, the Court of Appeal emphasised that both ketamine and "ecstasy" were the drugs most frequently used by those under the age of 21 and they also observed that both drugs were potentially, at least, highly dangerous and had a significant potential for psychological dependence. 

The guidelines provided by the Court of Appeal establish that for those convicted of trafficking in ketamine after trial in amounts of between 10 and 50 grammes, starting-points for sentence ranging from 4 to 6 years were deemed to be appropriate.  The quantity of the drugs in Count 1 therefore falls within those parameters. 

For amounts of ketamine of between 300 and 600 grammes, starting-points for sentence of between 9 to 12 years were deemed to be appropriate.  This is obviously the proper band for sentence in Count 2. 

In so far as Count 1 is concerned, bearing in mind the quantity of the drugs and with reference to the guidelines, a starting-point of 5 years and 3 months' imprisonment after trial would have been appropriate.  Allowing a full one-third discount for the plea of guilty and mitigation, the appropriate sentence is then one of 3 years and 6 months' imprisonment.  That is the sentence I impose on Count 1. 

For Count 2, given the quantity of ketamine involved, the appropriate starting-point is slightly in excess of 11 years and I will take 11 years as the appropriate starting-point.  Reducing that by one-third for the plea of guilty and mitigation, the appropriate sentence then is one of 7 years and 8 months' imprisonment.  Bearing in mind the principles of totality and the recommended approach for sentencing advised by the Court of Appeal where there is one or more counts on an indictment, I have considered the total quantity of ketamine by reference to the guidelines for sentence.  In the circumstances, I am satisfied that an aggregate starting-point of slightly in excess of 11 years would be appropriate and, reduced by the full one-third, would still result in a sentence of 7 years and 8 months' imprisonment.  It is therefore appropriate that the whole of the sentence on Count 1 should be served concurrently with the sentence on Count 2.  In the end result, the total term of imprisonment will be one of 7 years and 8 months. 

(Proceedings from 10.26 am not required)

Court adjourns - 10.27 am

Court resumes - 10.38 am

Accused present.  Appearances as before. 

MR POWER:  My Lord, I apologise for bringing you out again but my friend and I have redone the calculations so...

COURT:  Yes, I was doing the same but whilst in chambers.

MR POWER:  While we were -- perhaps...

COURT:  And I realised that, well, the calculation -- whilst the calculation was correct that, in fact, my handwriting was wrong. 

MR POWER:  Right.  My friend and I calculate that the sentence on the 2nd count, your Lordship probably meant 7 years and 4 months. 

COURT:  I did.  I just went back and realised that whilst my original calculation was, in fact, correct, I'd written that down incorrectly and, for the avoidance of doubt, the sentence on count 2 from a starting-point of 11 years, allowing for a full one-third discount, results in a sentence of 7 years and 4 months' imprisonment and similarly, for the avoidance of doubt, the sentence of Count 1, will be served wholly concurrent with that sentence and I'm grateful, gentlemen, for bringing me back to correct that.