HKSAR v. SHUM WAH LE

HCCC 115/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 115 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 pleaded guilty in the Eastern Magistrates Court on 14 March 2014 to the offence of trafficking in a dangerous drug, namely 2,189.88 grammes of a powder containing 1,745.85 grammes of ketamine, and was committed for sentence to this court.

To his credit, he entered his guilty plea to the offence at an early opportunity during the committal proceedings and, as a result, he has saved the time and effort of all those persons involved in the proceedings against him and brought finality to the case. For this, he will receive a one-third discount to his sentence.

Briefly, the offence took place as follows. At about 3.55 pm on 6 November 2013, a team of police officers in plainclothes were carrying out an operation at Chek On Estate, Cheung Sha Wan, when the defendant was observed alighting from a private car nearby and proceeding to the estate. He was carrying a messenger bag and entered the public toilet at the estate. He was intercepted by the police and a search of his messenger bag revealed that it contained a tinfoil packet with four packets inside. The police suspected that the packets contained drugs.

He was cautioned and, upon questioning, admitted that the tinfoil packet contained 'K Chai' which is a local expression for ketamine. He said that he had been asked by a friend to take the packet to the toilet and to hide it there. On further inquiry, the defendant told the police that there were four more packets of 'K Chai' in his car. He explained that as he had a newborn daughter, he delivered the drugs to earn money. The drugs contained in the tinfoil packet consisted of 970 grammes of a powder containing 780 grammes of ketamine.

A search of his car uncovered seven packets of ketamine together with an electronic scale in the storage compartment of the driver’s seat door and another one under the front passenger seat. He admitted that the car belonged to him and the drugs found had been obtained from his friend for delivery to someone else for the purpose of trading in the drugs. The drugs found in the car consisted of 1,219.88 grammes of a powder containing 965.85 grammes of ketamine.

The estimated retail value of all the drugs seized was $264,900. In a further interview, the defendant admitted that 'K Chai' was a dangerous drug and that a friend had asked him to hide the packet of drugs in the toilet and to deliver the rest found in his car for a reward of $1,000. He said that he had collected the drug somewhere in Kwai Chung and had no means of contacting his friend. He said he worked as a decoration worker earning approximately $15,000 per month and that he committed the offence in order to earn money to support his family. He said he was not a drug user.

The defendant is a young man aged 28 who received secondary level 3 education in Hong Kong. From about 2002, he has worked as a plumber and electrician. I am told that, in 2010, he went into a frozen meat business which was unsuccessful and by the end of 2011, he was owing $100,000. He got married in 2010 and has a 15-month-old daughter. At the time of the offence, he lived with his wife and daughter who he supported as well as a 13-year-old stepdaughter from a previous marriage. I am also told that he was brought up by his mother who was a single parent and with whom he has a very close relationship.

The sentencing regime for trafficking in ketamine is governed by guidelines laid down in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1 and for large quantities of the drug, further guidance has been provided in HKSAR v Ng Hon Keung [2012] 1 HKLRD 1017 and HKSAR v Sin Chung Kin [2013] 1 HKLRD 627.

I must say it sounds incredible that someone would do this crime for $1,000 and throw his life away in the process, but that is what has happened in this sad and tragic case. I have received a letter pleading leniency for the defendant from his wife. She describes him as a good husband and loving father. They have a 15-month-old daughter and his period of incarceration will severely impact on his wife and child. Through his counsel, he has expressed his remorse and sorrow for the offence and the impact it has had on his family and friends. It is a pity he did not think of them when he committed this offence.

I was moved by the sentiments expressed on his behalf and the support that has been shown for him by his family and friends in court today. It appears that he is basically a good person who foolishly let others lead him astray. I was also impressed by his readiness to admit the offence and co-operate with the police. I will therefore impose as lenient a sentence as I possibly can according to law.

In the case of Hii Siew Cheng, the Court of Appeal provided guidelines for sentencing after trial for traffickers in ketamine and fixes a sentence of 14 years upwards for over a thousand grammes. In accordance with the sentencing cases I have mentioned and taking into account the circumstances of the offence and of the defendant, I adopt a starting point for 1,745.85 grammes of ketamine of 15 years’ imprisonment. For this quantity of this drug, the starting point would usually be slightly higher but I feel that, in the circumstances of this case, 15 years is appropriate.

I reduce the starting point by one-third for the defendant’s plea of guilty and I sentence the defendant to 10 years’ imprisonment.

Application has been made by the prosecution to forfeit the defendant’s private car which was used in the offence. He used his car to transport the drugs to the estate and also had two electronic scales inside the car. It is argued that he was using his car to transport and package the drugs.

The prosecution rely on section 56(1)(a) of the Dangerous Drugs Ordinance, Chapter 134, in support of the application. It provides that a court may order the forfeiture of any money or thing which has been used in the commission of or in connection with an offence of trafficking in a dangerous drug. An order under this statutory provision may include a term permitting a person to redeem such thing as contemplated for forfeiture on such conditions as the court may think fit.

I have carefully considered the circumstances of the offence and of the defendant. As part of the Admitted Facts, the defendant got involved in this offence at the request of another person and for the purpose of making a delivery of the drugs for him. Whilst he did use his private car to transport the drugs and store two sets of electronic scales, he did so for the purpose of making delivery of the drugs for this other person. I accept that to be the case given the defendant’s readiness to admit the offence and co-operate with the police.

I will give the defendant the benefit of the doubt and decline to make the forfeiture order as requested. I make an order in the terms sought for the disposal of the exhibits except for items 31 and 32 being the car keys and the private car which will be returned to the defendant.