HKSAR v. FOO CHUN SHEK

HCCC 92/2020

[2020] HKCFI 2199

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 92 OF 2020

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

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COURT:

You appear here today to be sentenced, having been committed for sentence after you had pleaded guilty in Eastern Magistrates’ Court on 4 May 2020 to a single charge of unlawfully trafficking on 20 July 2019 in 623 grammes of ketamine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134. You accepted the Summary of Facts as the basis for the court accepting your plea of guilty.

On the evening of 20 July 2019, you were intercepted by police officers in Bute Street in Mongkok in Kowloon. A search of a bag that you were carrying revealed the presence of a white plastic bag containing three transparent resealable plastic bags which themselves had a plastic bag stapled to each of them.

In a video record of interview conducted of you by police officers, you said that you were delivering the dangerous drugs from Yuen Long to Mongkok and you were waiting for instructions as to whom they were to be delivered. You said that you were to receive a reward for making the delivery of $800 per bag.

You were born in the mainland in December 1997 and educated to Form 3 level. So you are now 22 years of age. You have no previous criminal convictions.

In mitigation, Mr Dick Lee informed the court of the circumstances in which you had come to commit this offence. You were employed as a highway maintenance worker earning about $22,000 per month. In about 2018, you began to cohabit with Ms Chow whom you married in April 2020. Your monthly rent outgoings were $13,000. Ms Chow was a student studying child nursery care at a tertiary institute and it appears you were responsible for all your communal expenses.

At the beginning of 2019, you lost your job. You were unable to find employment with a similar income, so you became employed as a part-time warehouse worker earning about $12,000 per month. Obviously, your income was less than your outgoings and you fell into debt so that by July 2019, your debt was over $100,000. It was in those circumstances that you reached the arrangement to deliver dangerous drugs for reward as it is set out in the Summary of Facts. In the event, you were not paid anything.

Mr Lee informed the court that you are remorseful for having committed this offence and regret disappointing your parents and your wife. In your letter to the court, you acknowledged that your misdeed “was very serious and has harmed the society”, but you say that you have “learned my lesson”. You asked for a chance.

In addition, the court has received letters supporting you from your wife and your mother. Your wife speaks of your generosity towards others, helping animal welfare and of helping those in need, both young and old. Your mother describes you as a filial son and invites this court to accept that you would never make this mistake again. In addition, the court has received letters from your secondary school teacher and a tutor from those school days.

At today’s hearing, Mr Lee provided the court with two further letters, one from Madam Ho Loy, the chairperson of the Lautau Buffalo Association, who testified to your wholehearted efforts in helping that association. The second was a letter from a child. In answer to the court’s question, Mr Lee said that he thought it was appropriate to put this letter before the court. The child is 10 years of age. She spoke of the help that you had given her in various activities including homework, cooking and outdoor activities.

Mr Lee acknowledges that the sentencing guidelines for trafficking in ketamine articulated in the judgment of the Court of Appeal in the Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1 provide a sentencing tariff for sentencing a defendant after trial for unlawfully trafficking in ketamine. Trafficking in amounts of 600 to 1,000 grammes calls for a range of sentence of 12 to 14 years’ imprisonment. In oral submissions, he acknowledged that an arithmetic calculation of sentence resulted in a starting point for sentence of 12 years and 42 days’ imprisonment. In his written submissions, he invited the court to stipulate a starting point for sentence of 12 years’ imprisonment.

Having invited the court to note that you pleaded guilty in the magistracy on 4 May 2020, Mr Lee submitted that you are entitled to a one-third discount from a sentence taken as the starting point for sentence. In his oral submissions to the court, he suggested that the discount could be even greater. However, when invited to cite authority for that proposition, he was unable to cite any authority.

Mr Lee was correct in submitting that the tariffs identified in the judgment of the Court of Appeal in the Secretary for Justice v Hii Siew Cheng are applicable in imposing sentence on you. As he noted, for unlawfully trafficking in amounts of ketamine of 600 to 1,000 grammes, the court stipulated a range of sentence from 12 to 14 years’ imprisonment. In the circumstances, I take a starting point for sentence of 12 years and 1 month’s imprisonment, which figure I arrive at by an arithmetic calculation of the sentence based on the tariff rounded down to the nearest month.

In light of your plea of guilty in the magistracy, you are entitled to a discount of one-third from that taken as the starting point for sentence. In the result, I sentence you to 8 years’ imprisonment, which sentence I arrive at by the application of a one-third discount rounding down the resulting figure to the nearest month.