HKSAR v. MA WAI KEUNG

DCCC 361 & 477/2022 (Heard together)

[2023] HKDC 1628

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 361 OF 2022

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IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 477 OF 2022

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REASONS FOR SENTENCE

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1.  There are two cases before me. In both cases, the defendant pleads guilty to the charges against him, namely, two charges of trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance (DCCC 361/2022)  and one charge of conspiracy to deal with property known or believed to represent proceeds of an indictable offence, contrary to section 25(1)  and (3)  of the Organized and Serious Crimes Ordinance, Cap 455 and section 159A and 159C of the Crimes Ordinance, Cap 200 (DCCC 477/2022).

Facts

DCCC 361/2022

2.  On 15 December 2021, customs officers intercepted the defendant at about 8 pm at the address under Charge 1.  Upon search, 2 plastic bags containing 41 plastic bags containing a total of 16.93 grammes of a solid containing 14.42 grammes of ketamine and 2 plastic bags containing a total of 19 plastic bags containing a total of 4.50 grammes of a solid containing 3.28 grammes of cocaine were found inside the defendant’s right trouser pocket. 

3.  The defendant was arrested.  Under caution, he said that these drugs seized belonged to him and were for his own consumption. 

4.  He was later brought back to the address under Charge 2.  A black bag containing 3,874 empty plastic bags of different sizes, 3 electronic scales, a pair of scissors, a plastic box with lid containing a cutter and 28.4 grammes of a solid containing 23.5 grammes of ketamine were found on a desk inside the premises.  Under caution, the defendant admitted that the drug seized was for his own consumption.

5.  The estimated street value of all these drugs seized was HK$30,163.

6.  At all material times, the defendant had in his possession all these drugs seized for the purpose of unlawful trafficking.

DCCC 477/2022

7.  Between 13 May 2014 and 3 March 2016, the defendant’s Hong Kong Jockey Club account number 26551087 showed:

(a)  Total cash deposit of HK$2,119,500 (99.9% of the total amount)  in 1,753 transactions (99.8% of total transactions)  with winning bet of HK$1,300 (0.1 of total amount).

(b)  Total cash withdrawal of HK$2,115,230 (99.7% of total amount)  in 203 transactions (84.2% of total transactions), with a total of HK$1,430 bets placed (0.1% of total amount).

(c)  Mirror pattern can also be observed.

8.  The defendant was arrested on 21 August 2017.  In the cautioned video-recorded interview, the defendant admitted, inter alia, that:

(a)  He opened the said Hong Kong Jockey Club account upon request of a friend known as Ar Man, and received a monetary reward of HK$2,000. He handed his Electronic Shroff Card with password to this friend.

(b)  He never placed any bet with the account.

(c)  He had no knowledge about the transactions in the account.

9.  During the material times, the defendant owned no company, business, vehicle or property in Hong Kong.  The Inland Revenue Department tax return records showed that he filed no tax return during the material period.

10.  TIC records of the material period also showed that a number of deposits and withdrawals were made when the defendant had departed from Hong Kong.

11.  At the material times of the offence, the defendant conspired with a person known as Ar Man, knowing or having reasonable grounds to believe that property, namely, a total sum of HK$2,115,230 in his Hong Kong Jockey Club account, in whole or in part directly or indirectly represented the proceeds of an indictable offence, to deal with the property.  

Criminal Record

12.  The defendant has a previous wounding conviction.

Mitigation

13.  The defendant is now aged 28.  He is single.  He has received education up to Form 4.  His parents divorced when he was 10.  He joined the workforce at the age of 16, working as a waiter, later promoted to a supervisor and later further promoted to an assistant manager.  The defendant’s mother remarried when the defendant was young.  The defendant was desperately in need of love and relationship which meant a lot to him.

14.  The money-laundering offence was committed by the defendant when he was aged 19.  He was asked by his friend to help, partly out of loyalty to his friend and partly because he was paid HK$2,000, he committed the offence in question. 

15.  It was said by defence counsel that the defendant had attempted to commit suicide back in the year 2017 when his relationship with his girlfriend deteriorated.  Subsequent to that, the defendant wrongly and foolishly mingled with bad peers and was lured into taking dangerous drugs.  It was said that the defendant was aged 26 when he committed the drug-trafficking charges.  Due to financial difficulty, tempted by monetary reward and his desperate need for dangerous drugs for self-consumption, he committed the offence in question. 

16.  It is submitted by defence counsel that the defendant is currently taking a 6-month bible study certificate course offered by the Hong Kong Christian Kun Sun Association.  He is also getting support from the association. It is said that the defendant is very determined to turn a new leaf and to get a proper job on his release from prison.

17.  Concerning the drug-trafficking charges, defence counsel urged this court to adopt the combined approach when considering the sentencing starting point as two types of drugs are involved in this present case, and she submitted that the sentencing starting point should be 5 years and 8 months’ imprisonment. 

18.  She also urged this court to give the defendant certain sentencing discount by reason of the defendant’s own consumption of cocaine, as supported by his urine test conducted on 18 December 2021.  She asked that 3 to 6 months’ imprisonment be deducted from the sentencing starting point.

19.  As for the money-laundering charge, defence counsel referred this court to the case of HKSAR v Hsu Yu Yi [2010] 5 HKLRD 545.  It is submitted that in the present case:

(a)  the amount involved was HK$2.1 million;

(b)  the period in question was from 13 May 2014 to 3 March 2016;

(c)  there is no evidence that the defendant knew the nature of the predicate offence;

(d)  there is no international element involved;

(e)  the role of the defendant is minor and he has no personal involvement in the actual withdrawal of any of the amount in the Jockey Club account;

(f)  the defendant was arrested in 2017 and the matter hanging over his head for over 5 years; and

(g)  the defendant was only aged 19 when he committed the present offence.

20.  Defence counsel urged this court to adopt 2 years’ imprisonment as the sentencing starting point and to give the defendant certain sentencing discount by reason of the delay in prosecution.  Defence counsel conceded, however, that the delay is not unreasonable.

21.  By reason of the defendant’s guilty plea, defence counsel urged this court to give the defendant full one-third sentencing discount.  She asked this court to consider the defendant’s relatively young age, his guilty plea, his personal background and how the offences were committed as well as the defendant’s determination to start afresh upon his release from prison, and asked this court for leniency for the defendant.

22.  Defence counsel also urged this court to consider the totality principle when sentencing the defendant on the two cases and to allow the sentence for the offences be served concurrently.

Discussion

23.  Before sentencing, this court has considered all that was submitted by defence counsel, including 3 mitigation letter which says that the defendant has during this time of remand reflected himself and is fully determined to start afresh on his release, keeping a proper job, and to keep himself away from undesirable peers.

DCCC 361/2022

Charge 1

24.  14.42 grammes of ketamine and 3.28 grammes of cocaine were trafficked under this charge.  Total weight of the drugs trafficked is 17.7 grammes.

25.  Had all the drugs trafficked been ketamine, following the guideline in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, the sentencing starting point would be 52.62 months’ imprisonment. 

26.  Had all the drugs been cocaine, following the guideline in Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69, in adopting the guideline in R v Lau Tak Ming [1990] 2 HKLR 370, the sentencing starting point would be 66.93 months.

27.  Cocaine represents 18.53% of the drugs seized in weight whereas ketamine represents 81.47% of the drugs seized in weight.  Using the combined approach and the ratio test, the sentencing starting point should be 54.87 months’ imprisonment.

28.  Two types of drugs are involved here, which constitute an aggravating feature in sentencing, the court will enhance the sentencing starting point by 3 months, bringing the sentencing starting point to 57.87 months’ imprisonment for Charge 1.

29.  In HKSAR v Liu Ming Sze [2017] 1 HKLRD 279 and HKSAR v Kong Tat Lung [2018] 5 HKLRD 635, the Court of Appeal had already pointed out that the range of discount suggested in the HKSAR v Chow Chun Sang [2012] 2 HKLRD 112 was not relevant unless a significant proportion of the drugs in question was for the defendant’s self-consumption.  If it was the defendant’s case that not a significant proportion was involved, it would then be a matter of discretion for the sentencing judge to decide whether any reduction should be granted for this self-consumption element and if so, the range of discount given.

30.  The court is not willing to exercise its discretion and to afford defendant further discount by reason that he is a cocaine user because this is not a case where the defendant is using significant proportion of the drugs seized for his own consumption, and further, having regard to the time and place where the defendant was found with the cocaine and the way that they were packaged.

31.  The defendant has pleaded guilty and is therefore entitled to full one-third sentencing discount.  He is therefore sentenced to 38 months and 15 days’ imprisonment for Charge 1.

Charge 2

32.  Following the said guideline, trafficking 23.5 grammes of ketamine would attract a sentencing starting point of 56.1 months’ imprisonment. 

33.  By reason of his guilty plea, he is entitled to full one-third sentencing discount.  He is therefore sentenced to 37 months and 12 days’ imprisonment for Charge 2.

Totality

34.  In reality, the defendant is convicted of trafficking in total 37.92 grammes of ketamine and 3.28 grammes of cocaine in this case.

35.  Total weight of drugs trafficked is 41.2 grammes, of which cocaine represents 7.96% in weight and ketamine represents 92.04% in weight. 

36.  Had all the drugs trafficked been ketamine, the sentencing starting point would be 66.72 months’ imprisonment.  Had all the drugs trafficked been cocaine, the sentencing starting point would be 88.08 months’ imprisonment. 

37.  Using the combined approach and the ratio test, the sentencing starting point should be 68.4 months’ imprisonment.  This sentencing starting point is enhanced by 3 months by reason that two types of drugs are trafficked. 

38.  On this occasion, the court is not going to enhance further the sentencing starting point by reason that the defendant committed the offence whilst he was on police bail for the money-laundering case. 

39.  The defendant is entitled to full one-third sentencing discount by reason of his guilty plea.  He is therefore sentenced to 47 months and 18 days’ imprisonment for this case. Accordingly, 10 months and 6 days’ imprisonment under Charge 1 is to run consecutively to the sentence of Charge 2, the rest to run concurrently.

DCCC 477/2022

40.  The amount of money involved in this case is HK$2,115,230. 

41.  This court agrees that there is no evidence as to what the predicate offence is in this case or that the defendant is aware of the nature of the predicate offence and, as submitted by the defence counsel, that the defendant knew where the money came from or that he was responsible or had knowledge of the deposits and withdrawals made.  The defendant simply had lent the account for use by his friend for a reward.

42.  The defendant was aged 19 then.  These moneys transactions were made over a period of 1 year and 9 months.  There were 1,753 cash deposits and 203 withdrawals, representing 99.7% of the total deposits.  There is also no international element or cross-border element involved.  The defendant committed the offence when he then had a clear record. 

43.  The culpability of the defendant in this case is less than the defendant in the Hsu Yu Yi case.  The defendant in the Hsu Yu Yi case is non-Hong Kong resident coming to Hong Kong specifically to set up an account to collect proceeds from a fraud case.

44.  The court considers that 2 years and 3 months’ imprisonment as an appropriate sentencing starting point in this case.

45.  As for the issue of prosecution delay, defence counsel has fairly admitted that the delay was not unreasonable but that it caused the defendant to be put in suspense during that long period. 

46.  The defendant was arrested on 21 August 2017 for this money-laundering charge.  He was then put on police bail, during which he was asked to report regularly to police station.  He was first brought to the magistrates’ court on 13 May 2022. 

47.  Police had first submitted the case to Department of Justice (“DoJ”)  for legal advice on 20 April 2020 after investigation of the defendant and two others, involving 10 local accounts.  They were asked to conduct further investigation on 2 February 2021 by the DoJ.  During this time, the defendant committed the drug-trafficking offences in DCCC 361/2022 on 15 December 2021.  This was not a case of the defendant having rehabilitated himself during this interim period.

48.  This court accepts that the defendant was put in an unreasonably long period of suspense.  This resulted from the delay by the prosecution (though not unreasonable)  and due to no fault on the part of the defendant.  In these circumstances, the court is willing to give the defendant sentencing discount of 2 months’ imprisonment.

49.  The defendant has pleaded guilty and is entitled to full one-third sentencing discount.  He is therefore sentenced to 16 months and 18 days’ imprisonment for this case.

Totality

50.  The charges for which the defendant was convicted in these two cases are entirely different in nature, totally unrelated, and there was a long time gap in between.  But considering the relatively young age of the defendant and in order not to jeopardise him from rehabilitation, this court would order 3 months and 18 days’ imprisonment be discounted from his total sentence. Therefore, 3 months and 18 days’ imprisonment in DCCC 361/2022 be served concurrently with the sentence in DCCC 477/2022, the rest to run consecutively.

51.  The total sentence for the defendant would be 60 months and 18 days’ imprisonment.