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HCCC131/2009
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CRIMINAL CASE NO. 131 OF 2009
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HKSAR |
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v. |
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Chiu Wai-ho (A1) |
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Poon Siu-ki (A2) |
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Before: Deputy High Court Judge Mackintosh
Date: 9 July 2009 at 10.56 am
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Present:
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Mr Richard Donald, on fiat, for HKSAR
Mr Jackson Poon, instructed by Ellen Au & Co., for the 1st Accused
Mr Hoosen, instructed by Peter K H Wong & Co., for the 2nd Accused
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Offence: (1) & (2) Trafficking in a dangerous drug (販運危險藥物)
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Transcript of the Audio Recording
of the Sentence in the above Case
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COURT: You have each pleaded guilty to two counts of trafficking in dangerous drugs, the dangerous drugs in question being ketamine. You now have to be sentenced for those offences.
As I know you have been told, sentencing in drug-trafficking cases is based primarily on the quantity of narcotic involved. The Court of Appeal has, over many years, established guidelines for sentencing in relation to different types of drugs so that there is a measure of consistency in sentences imposed in different cases that is fair to all offenders.
The facts of your case are straightforward. The two of you were acting together as drug traffickers from a room in a subdivided flat on the 7th floor of a building in Un Chau Street in Sham Shui Po. In the early hours of 5 December 2008, police officers waited in ambush outside that flat and when you emerged, they intercepted and searched you. Each of you was in possession of four packets of powder containing ketamine. The overall weight of each packet is 28 grammes, the equivalent of 1 ounce. When analysed, the total narcotic content was 145 grammes. This is represented in Count 1.
Inside the room rented by you, D2, the police found a further quantity of dangerous drugs, namely 570 grammes of powder containing 324 grammes of ketamine, together with dealer equipment such as scales, plastic bags and spoons. This was the stock from which you were distributing drugs in response to phone calls from prospective customers whom you would meet out in the street. These are drugs which would eventually be handed over to customers and for which payment would be made. This quantity is represented in Count 2.
The quantities that were being distributed were moderately substantial. This was manifestly not distribution of single deals to individual users but was a wholesaling business. Money received from customers was, according to your admissions, retained by you, D2. You were found to be in possession of $8,200 which you admit was the proceeds of sales.
Having been intercepted by the police, you were each interviewed and made admissions. D2, you admitted that the ketamine in the flat was to be packed by you for onward distribution, that the packets in your possession were for sale. D1 was what you called “another partner of mine” who had been introduced by “someone behind the scenes to give me a hand”. You did not want to say who it was who introduced him, or who had supplied the drugs to you. You agreed that the flat was rented by you.
D1, you said that you had been taken on by D2 to work for $500 a day packing drugs and taking them to customers who called you on one of the mobile phones in your possession. You said that this was the fourth day you had worked in this capacity.
In so far as you were partners, it would appear, on the evidence of the admissions of each of you, that D1 was the junior partner. However, the roles in this trafficking were not so different that they can lead to any difference between you so far as sentence is concerned. What you did in relation to these particular drugs was effectively the same and I must treat you on the same basis. Therefore, the starting point for sentence must be the same for each of you. It would be wrong, in my judgment, to draw any distinction.
The sentencing guidelines for trafficking in ketamine have recently been reviewed by the Court of Appeal in a case called Hii Siew Cheng. I have no doubt that this has been explained to you and you have been told that it is these guidelines which apply to your case.
In determining whereabouts in those guidelines you fall, I look at the overall quantity of ketamine involved. In your case, that is the 470 grammes rather than the individual quantities in each of Counts 1 and 2. To do otherwise would result in a distorted, exaggerated starting point for sentence.
Actually, it was not essential for the Department of Justice to split this case into two counts. This was one enterprise of trafficking in dangerous drugs, not two. The fact that it has done so should not work to the prejudice of either of you.
The sentencing band into which you fall is therefore for quantities of 300 to 600 grammes for which sentences of 9 years’ to 12 years’ imprisonment are prescribed for those convicted after trial. I judge that the appropriate point in that band for this case is at least 10½ years’ imprisonment. If one were to take a purely mathematical approach, which I decline to do, it could be a little higher. I am satisfied that the overall starting point of 10½ years meets the justice of the case.
Sentences for drug dealing are heavy. They are intended to be, even for those involved over a short period. They are designed to deter people from becoming involved in trafficking in dangerous drugs.
The mitigation in each of your cases is based mainly on your pleas of guilty. I am told some other things about you. D1, you are 35. You have no criminal record because some juvenile transgression could be completely ignored. You have, as counsel has said, been co-operative throughout and genuinely remorseful for this offence. I am willing to accept that you were drawn into it by the promise of some urgently needed cash, but it is such temptation that has to be deterred by the sort of sentences laid down by the Court of Appeal.
D2, you are 29 years old. You have a criminal record, only one drugs-related, and that for possession and not for trafficking. Other matters are of a different nature and manifestly not as serious as this. I can say that your record does not aggravate your position in this case.
You too made prompt admissions to the police. Your co-operation ended when you indicated not guilty pleas in the listing court here in the Court of First Instance and a trial was fixed. You pleaded guilty on the morning of the trial and, on the authority of previous decisions of the Court of Appeal, you must be given the same discount for that late plea as D1 for his rather more timely indication of guilty pleas. You therefore end up in the same position.
Together, these matters lead, in each of your cases, to a reduction of one-third in the sentence which would have been imposed if you had been convicted after trial. That means that the overall sentence is reduced from 10½ years to 7 years.
As to the sentence itself, it must, as I earlier said, be divided between the two counts. Again, I decline to take a mathematical approach. I shall obviously apply a greater portion of the sentence to Count 2 which involved the larger amount of drugs and I shall direct the sentences to run consecutively so as to achieve the proper overall sentence.
As to Count 1, the sentence I impose on each of you is 2 years 8 months’ imprisonment. On Count 2, the sentence I impose on each of you is 4 years 4 months’ imprisonment to be served consecutively, making 7 years in all.
D2, you are presently serving a 2-month sentence of imprisonment which has not yet been completed and the sentence that I have imposed upon you today must be served consecutively to that 2-month term.
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