HKSAR v. CHU KONG FAI

HCCC 133/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 133 OF 2015

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

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COURT:

The defendant had pleaded guilty to two charges, namely, trafficking in dangerous drugs and possession of dangerous drugs.

The trafficking charge involved two types of drugs, that is, about 34 grammes of “Ice” and 140 grammes of ketamine. As to the 2nd charge, there was 1.9 grammes of ketamine.

The defendant had also admitted the facts of the case. According to the Summary of Facts, on the date in question, the defendant was stopped by the Customs at the Lo Wu border. During a search, the custom officer had found the packets of “Ice” in the defendant’s trousers pocket, and the bag of ketamine in the defendant’s underpants. He was then arrested.

On the next day, the officer had conducted a search in the defendant’s car, and the ketamine stated in the 2nd charge was found.

In a subsequent video interview, the defendant disclosed that he had obtained the drugs from someone in Shenzhen, he was going to deliver the drugs to Hong Kong for a reward of HK$3,000, and for the ketamine found inside his car, he maintained that it was for his own consumption.

The estimated market value of the drugs seized was about HK$40,000.

The defendant is now 36 years old. He had a number of previous convictions, including burglary, possession of drugs and trafficking in drugs.

The defence counsel had very helpfully prepared a written submission for his mitigation. Counsel explained to the court the personal problems that the defendant was facing, in that, his lack of a permanent job led to arguments with his wife and he even had to move out of their residence. Then the defendant stayed with the drug peers, and under those circumstances, he returned to the taking of drugs. When his financial pressure became too great, he was persuaded to bring back drugs to Hong Kong for financial gain. Now, his wife had divorced him.

Counsel argued that the defendant had pleaded guilty and had rendered assistance to the department, therefore, the court should consider giving the defendant a full 50 per cent discount in sentence.

In this regard, I have received letters from the prosecution confirming that the defendant had indeed provided useful statements to the Customs Department, and as a result, a suspect was arrested and actually charged. The trial shall take place in the High Court.

The defendant had indicated that he would be willing to testify in that case, but whether he will do so, and how the trial will turn out, is not a certainty at this stage. In terms of the starting point for the charges, especially the 1st count, counsel suggested that it should be 7 to 8 years. In this regard, counsel had referred to the case of HKSAR v Wan Lau Mei [2014] 4 HKC 75. While acknowledging the authority of the Court of Appeal’s decision in Wan Lau Mei, I am not sure counsel’s method of assessment is applicable to our case.

My simple question is this. If the defendant is caught and charged with 34 grammes of “Ice”, according to the case of Ching Kwok Hung, the tariff starting point should be about 8 years. Now, if the trafficking in “Ice” alone would attract a tariff of 8 years, it is difficult to understand why an additional amount of 140 grammes of ketamine would mean the same or even a lower starting point.

According to SJ v Hii Siew Cheng [2008] 3 HKC 323, 140 grammes of ketamine would in itself attract around 7 years of imprisonment. But if defence counsel’s approach is right, does it not mean that it is better off to traffic “Ice” together with ketamine? I find the proposed starting point difficult to accept.

In the circumstances, what I would do is to use the amount of “Ice” to set a starting point, and enhance it to reflect the additional amount of ketamine. I shall therefore adopt 8 years, and increase it to 9 and a half years, for the total amount of drugs named in the 1st count. There is, of course, the issue of cross-border trafficking that the court has to consider. I shall add, in the circumstances, another 6 months for that factor. This is already a lower enhancement than the other cases.

So the starting point for the 1st count is therefore 10 years.

The defendant had pleaded guilty. I shall of course grant him the basic one-third discount. The remaining question is how much further the sentence should be reduced for his useful assistance.

For a defendant who has given useful information but not yet testified, I consider that 40 per cent discount is appropriate. If the defendant eventually testifies truthfully in court, he may have other venues to seek for a further reduction, if appropriate. So, for the 1st count, 6 years. For the 2nd count, 1 year, both terms to run concurrently. The total sentence is 6 years.