HKSAR v. SO HO PING

HCCC 374 & 375/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 374 AND 375 OF 2015

-----------------

------------------

---------------------------------

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

---------------------------------

COURT: So Ho-ping and Kong Tong-hei, you have pleaded guilty today to one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

The summary of facts has been read out to you and you have accepted that summary.

Kong Tong-hei, you were 18 years of age at the time of this offending. So Ho-ping, you were just 16 years old and a minor.

At some stage before 11 March 2015, you had both agreed to collect and deliver audio speakers which contained dangerous drugs. Those speakers were being imported from the mainland, but as the prosecution pointed out we do not know for sure whether that was the case, and because of that I am going to give you both the benefit of the doubt as to whether there was, in fact, an international element to this offending.

In the evening of the 11 March, Choi Ching-ching and So Ho‑ping were seen by the police on Hung To Road. So Ho‑ping, you were pushing a trolley on which there was a wooden crate. You had picked up that crate from a logistics company and still had receipt of the goods upon arrest. All three of you were seen to enter the mall-like building and went into Room 19. You, Kong Tong-hei, took the crate, opened it and removed the dangerous drugs. That was the point in time at which So Ho-ping realised the extent to which he had become involved. When you left the building shortly afterwards you were both caught by the police and taken back to Room B19 where the police found two dismantled audio speakers together with several packets of dangerous drugs. Those are the exhibits I can see in court today.

In all, there were 635 grammes of ketamine, the street value of which at the time was $86,376.

You, Kong Tong-hei, were arrested and cautioned and immediately admitted trafficking in dangerous drugs. That is to your credit, although I fail to see why you did not plead guilty at the first opportunity in the Magistrates’ Court. Later in interview you said that you were to receive $5,000 for your part. You were 18 at the time of this offence and you are now 19 years old. You left school during form 1 and you have a very limited record of employment. The court must therefore ask itself how you managed to live given that you are single, lived with your mother and say that you consumed ketamine on a daily basis.

I note from your criminal record that you were first before the courts in 2011 when you were just 15, and that was for possession of dangerous drugs. You breached the probation order you were given at that time and you were back before the courts once again for possession of dangerous drugs in 2013. That was the last related matter on your record. But for other matters subsequent to that you received a training centre order which is not yet complete. The latest date for completion of that training centre order, according to the Correctional Services Department, is 18 November 2018.

You have therefore been in custody of some sort since you committed this offence, and if it were not for the training centre order you would have been given credit for that time today when the Correctional Services Department compute your release date.

More importantly, a training centre order is a specialised form of sanction which is directed at the offending of young people, and I want to take the benefit of that sanction into consideration when I assess the correct punishment for this offence.

You committed this offence with So Ho-ping who was, and still is, a minor. Section 56(a)(2) of the Dangerous Drugs Ordinance, Cap 134, allows the court to enhance the sentence of an adult who intentionally, or unintentionally, uses a minor in the commission of a specified offence. The reason for this is to let criminals know that they can expect to get a heavier sentence if they exploit young people in the commission of crime. It is intended to be a deterrent.

Offences such as this are very serious. They cause great harm to the people of Hong Kong, young and old. There is, therefore, very little that can be said in mitigation which would usually be able to reduce the sentence which this court must pass. But I have listened very carefully to what Mr Lo has said on your behalf and I have taken into account the papers before me and the matters I have already raised, including your own age at the time of offending and the fact that your mother did not see fit to come to court to support you today which is indicative of the care and guidance you received whilst growing up.

For the offence of trafficking in ketamine, under Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, the guideline starting point for sentence after trial for between 600 and 1,000 grammes is 12 to 14 years. The starting point after trial in this case would therefore be 12 years and 2 months. But that starting point does not take into consideration the aggravating and mitigating features of this case. That starting point will be enhanced by one further year because you committed this offence with a minor. It could have been greater, but I have taken into consideration that you were also a young adult and that you did not previously know Miss So nor did you actively recruit her. That makes a total of 13 years and 2 months.

However, there is to my mind a significant mitigation which turns on the facts of this case and which has been advanced by Mr Lo and accepted Mr Turnbull, and because of that I consider that an appropriate sentence after trial, including the enhancement I have already mentioned but also including the mitigation, would have been 11 years. You will receive a discount for your plea of guilty and you will go to prison for 7 years and 4 months.

You, So Ho-ping, were just 16 years and 2 months old at the time of the offence, although you are now 17. You were also arrested and cautioned at which time you said you had agreed to receive a very small amount of money, just 100 to 200 dollars, for collecting dangerous drugs, but had had second thoughts when you entered the flat and saw the large amount of drugs coming out of those speakers.

I note that in April 2015 you received two rehabilitation centre orders which arose from the possession of dangerous drugs which pre‑date this offending. I have listened very carefully to everything that Ms See has had to say on your behalf. This is, indeed, a very sad case. You clearly had considerable ability at school, and the head and staff all wrote to the court to offer letters of support. Not only that, but you have very many school friends who took the time to inform the court that you have a different side to your character which is generous and which is caring. This is a young life which I hope has momentarily gone off the rails and can be brought back from further offending.

I have taken into consideration the rehabilitation order that you have served and your remorse for what has occurred, as well as the fact that you clearly did not realise the extent of what you had got yourself into.

So Ho-ping, for trafficking in dangerous drugs in 635 grammes of ketamine, you face the same starting point as Kong Tung-hei, which is 12 years and 2 months’ imprisonment. But you were very young at the time of this offence, did not know what you were getting yourself into and have turned a corner since the offence occurred. A long period of imprisonment in the special circumstances of this case would benefit neither you nor society, and I note here that your mother is here to give you support and I sincerely hope that support continues in the future and that you are sensible enough to take it.

Taking into account all of the mitigation in this matter, I consider that the appropriate starting point after trial would have been 9 years. You will receive a discount for your guilty plea and you will go to prison for 6 years.