HKSAR v. CHICK KWUN YIN

HCCC 531/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 531 OF 2014

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Transcript of the Audio Recording
of the Sentence in the above Case
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COURT: The defendant has pleaded guilty in the Magistrates’ Court to one count of trafficking in a dangerous drug, namely 4.98 kilogrammes of a powder containing 3.49 kilogrammes of ketamine. He has been committed to this court for sentence.

The facts of the case is that at around 3.45 pm on 4 July last year, the defendant was intercepted at the passenger drop off area at Terminal 1 of the Hong Kong International Airport. He was carrying a black suitcase, inside of which were found the drugs in the charge.

The defendant was arrested and under caution frankly admitted that he had been asked to carry this drug from Shenzhen and he would be rewarded $5,000 for this. Subsequently, in a video-recorded interview he had revealed that he was asked by this person called Ah Tai whom he had met at an amusement game centre in Mong Kok to do this. He was told that the drug was K Chai.

The estimated retail value of these drugs in Hong Kong is about $627,480.

The defendant’s movement record showed that he left Hong Kong on 4 July at about 1.30 pm, and returned to Hong Kong via the Shenzhen Bay Control Point at around 3.10 pm.

The defendant is aged 18 and has a clear record. He is a Form 4 student at the time of his arrest. He has very hardworking parents whom he lived with. His father works very hard as a construction site worker, and his mother is a domestic helper.

I have been given a bundle of letters from the defendant’s school, teachers and Principal, Christian preacher, schoolmates, parents, relatives all testifying to a young man with great potential. But what is also obvious from these letters are the fact that the defendant is a very lucky young man, he has the love of so many people surrounding him. His luck also extends to today where he is represented by Mr McGowan and the assigned solicitor, and they have said everything they could possibly say on his behalf in mitigation.

The tragedy of this is that the defendant has thrown all this away in a moment of greed. The defendant, as can be seen from the letters that have been given to me, is an intelligent young man. And the defendant could not have been oblivious to the fact that he was running a very great risk by taking these drugs from Shenzhen to Hong Kong because all the time on television and the newspapers he cannot have missed the fact that people caught with trafficking in dangerous drugs are given very severe sentences of imprisonment.

And drug traffickers are using people like the defendant who are students and very cheaply they give you a $5,000 reward to transport these drugs at the risk of young men having to spend, like yourself, many many years in prison.

Ketamine is a highly toxic and extremely hazardous drug to the human body, as was said by the Court of Appeal in the case of HKSAR v Sin Chung Kin in 2013. And since 2005, there has been a sharp increase in the quantity of ketamine. Ketamine, unfortunately, is widely used and abused by young people below the age of 21.

In this case, if this amount of drugs was successfully transported and disbursed throughout Hong Kong, the number of families that it would affect is unquantifiable. That is why the Court of Appeal has laid down very stringent guidelines for sentencing for trafficking in this drug, because we have a duty to protect the young people in Hong Kong.

This is the tragedy of it because the defendant is a young man of great potential who could do very good work for Hong Kong and, unfortunately, will have to spend his formative years, his teenage years to his young adulthood in prison - all for $5,000.

However, all is not lost from the letter of the defendant. He has indicated that he will continue his study whilst in prison.

Hopefully, with the encouragement of those people who love him, he can then take advantage of this time in prison to get his education, get a University education whilst in prison, and learn a trade so that when he leaves prison he can then contribute to society, and also to look after his parents who have gone through a lot of pain and suffering for him.

Looking at the sentencing, as has been indicated in the case - which I am grateful to Miss Wong for submitting to me - in the case of HKSAR v Sin Chung Kin [2013] 1 HKLRD 627, the Court of Appeal has said that for trafficking of ketamine in 2,000 and 3,000 grammes, the appropriate starting point should be respectively no less than 18 years and 20 years.

The amount of drugs in this case is 3.49 kilogrammes, which is just slightly over 3 kilogrammes.

The mitigating factor in this case, as Mr McGowan has pointed out, is that this young man is remorseful. Unfortunately, the clear record and the defendant’s age are not mitigating factors because he is not particularly young, and the Court of Appeal has said that a clear record is not a mitigating factor in drug trafficking cases.

Normally, for importing drugs from China to Hong Kong is an aggravating factor which calls for an increase in the sentence.

Now taking everything into account, the matter in this case, the facts in this case, the background, I have decided therefore to impose a starting point of 19 years plus one year for importation from China to Hong Kong, thus giving us a 20 year starting point, and giving the defendant the full one-third discount for his remorse and plea, the defendant is sentenced therefore to 13 years and 4 months.

I want to make this clear that it is a case which I consider to be unusual in the sense that the defendant in his young age has, in the past, done a lot for the community by his volunteering work, like for example in Association of the Blind, etc.

Though I adopted as low a starting point as I can for the amount of drugs, this is not to be used as an example for future cases.