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HCCC 315/2017
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CRIMINAL CASE NO 315 OF 2017
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| Date: |
21 November 2017 at 10.49 am |
| Present: |
Ms Noelle A Chit, SPP (Ag) of the Department of
Justice, for HKSAR |
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Mr Wong Yun-wah Gordon, instructed by Eli K K Tsui &
Co, assigned by DLA, for the accused |
| Offence: |
(1) Trafficking in a dangerous drug (販運危險藥物) |
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(2) Possession of a dangerous drug (管有危險藥物) |
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Transcript of the Audio Recording
of the Sentence in the above Case
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COURT:
On 28 August 2017, the defendant pleaded guilty in the Eastern Magistrates’ Court to two charges, one of trafficking in a dangerous drugs, and the other, possession of a dangerous drug.
The particulars of the trafficking charge alleged on 21 May 2015 at Room 606, Mei Leong House, Shek Kip Mei Estate, in Shek Kip Mei, the defendant unlawfully trafficked in a dangerous drugs, namely 1,328.30 grammes of a powder containing 932.30 grammes of ketamine.
The particulars of the possession charge were similar, inasmuch as the and location date were the same, the drug concerned was 4.63 grammes of cannabis in a herbal form.
On that date, that is, 28 August 2017, the defendant not only pleaded guilty, but admitted a Summary of Facts provided by the prosecution in support of those two charges.
Today, before me, he has confirmed both his pleas of guilty to both charges, and the accuracy of the Summary of Facts which was read in open court again.
This has also been confirmed by his counsel.
The Summary of Facts reveals the following. On 21 May 2015, police officers were in operation at Mei Long House, Shek Kip Mei Estate in Shek Kip Mei. Shortly before 8 pm, a male came out of Room Number 603. He was seen to be standing in the doorway and looking around. This man was the defendant.
He was intercepted, and together with the officers, gained entry into the premises. A search was conducted, and during which the defendant said, “Ah Sir, no need to search for the ‘k chai’, it has been placed by me in the fourth drawer of the cabinet. It has nothing to do with the others.” The defendant then pointed at a cabinet. His statement to the police officers proved to be accurate and correct. Inside that cabinet were found 60 plastic bags containing a total of 1,328.30 grammes of a powder containing 932.30 grammes of ketamine.
They also found a plastic bag containing 4.63 grammes of cannabis in herbal form. Together with the above, there was an electronic scale, plastic spoon, and two stacks of plastic bags, undoubtedly for packaging drugs.
The defendant was arrested, and under caution, told the officer, “Ah Sir, these drugs ‘k chai’ are mine, they have nothing to do with them.”
He further elaborated on this, at a later video-recorded interview, which made it abundantly clear that he was packaging and selling ketamine from those premises.
In May 2015, the estimated retail value of the seized ketamine was $170,000. Shortly after, the defendant was charged with these offences, and released on court bail. He did not answer to court bail, when due, on 17 July 2015, and was ultimately located on 4 February 2017. He had been at large throughout that period.
The antecedent statement provided to me by the prosecution together with the criminal record of the defendant is as follows, insofar as it is relevant. He is now aged 47 years, and he has criminal convictions going back to 1989, and the last offence, other than for absconding, was in 2011, when he was sentenced to 2 years’ imprisonment for the offence of burglary. He has no previous convictions for traffic in dangerous drugs, albeit that he has been convicted for possession of dangerous drugs.
The antecedent statement and also the mitigation on his behalf by Mr Wong indicates that he has been a long-term drug user. And notwithstanding that, however, he appears to have maintained regular employment.
He is married, and has a 14 year old daughter. His wife suffers from a form of depressive illness.
This is a very unfortunate but not uncommon case. The quantity of drugs involved and the level of the trafficking operation indicates clearly that the defendant was trafficking on a high level. The Court of Appeal has made it abundantly clear that those who traffic in a drug like ketamine will undoubtedly receive severe penalties. In 2009, in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, the Court of Appeal provided guidance to sentences for sentencing for trafficking in ketamine. For a quantity of trafficking in between 600 to 1,000 grammes, the Court of Appeal has recommended sentences after trial of between 12 and 14 years’ imprisonment.
Based on those guidelines, and given the quantity involved here of 932.30 grammes of ketamine, the appropriate starting point for sentence after trial would be one of 13 years and 6 months’ imprisonment. The defendant has pleaded guilty at the first opportunity. He is therefore entitled to a full one-third discount from any appropriate starting point for sentence. Having considered the defendant’s background and the mitigation advanced on his behalf, I am unable to say that there is anything that would enable me to further enhance the degree of discount from that starting point. There is nothing in his background or the circumstances of the commission of the offence which would permit me to do that. Allowing for that full one-third discount, the resulting sentence on Count 1 would be one of 9 years’ imprisonment.
I consider, given the principles of totality, that any sentence imposed on Count 2 should be made concurrent to that on Count 1. In the circumstances, I believe that a sentence of 14 days’ imprisonment is appropriate for Count 2. And that sentence is to be concurrent to the sentence on Count 1. The ultimate sentence is one of 9 years’ imprisonment.
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