HKSAR v. SHEK HO YIN, ANDY

HCCC 236/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 236 OF 2016

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

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COURT:

Yes, defendant please stand. The defendant has pleaded guilty to two counts of trafficking, the first count being, namely 250 grammes of a solid containing 196 grammes of ketamine, and the second count, namely 2.98 kilogrammes of a solid containing 2.09 kilogrammes of ketamine.

On the afternoon of 15 November 2015, the defendant, who was aged 17 at the time was seen leaving the Cheong Fat Factory Building in Cheung Sha Wan by police officers. Because of his behaviour in acting furtively, he was stopped and searched and in a bag carried by the defendant was found what the police believe a suspected dangerous drug.

The police then arrested and cautioned him, whereupon the defendant admitted that he was delivering the drugs for money. He confessed that he had taken the drugs from a place on the 9th Floor in Cheong Fat Factory Building, and he was willing to lead the police there.

Also seized from the defendant were two mobile phones, four keys, and some money. After the police escorted the defendant to the said premises, the keys carried by the defendant was used to gain access to the premises. And inside the premises were found a large quantity of drugs, which was the subject matter of the 2nd count.

Under caution, the defendant said the drugs would be taken from the room if someone wants drugs, he would then have to collect the drugs and deliver them. Further, at a video-recorded interview, the defendant confessed that he had been given a mobile phone and instructed how he would deliver the drugs when required. He was also given keys to the said premises.

The defendant claimed that he was promised $300 for each delivery. He had no idea who rented the room.

The street value of the dangerous drugs was estimated at HK$403,750.

Police inquiries revealed that the room had been rented on 16 November 2014 for a period of three years by the principal tenant, and the principal tenant had sublet Room B4 to a male by the name of Chan Chi-ho for a period of one year, from 10 April 2015.

Now, it is clear from the evidence that the defendant was a courier of the dangerous drugs. The defendant was aged 17 at the time, and unemployed. It is very difficult when considering a proper sentence in a case of this kind. As Mr Boyton had correctly pointed out, the court had laid down guidelines for sentencing in this type of drugs, and the defendant has a clear record, and the biggest mitigating factor so far would be his plea of guilty at the earliest opportunity.

I had called for a background report, and the defendant clearly comes from a family of limited means, as his father is retired, and his mother is still working. He has a sister who, at present, is unemployed.

According to the probation officer, the defendant had quite a satisfactory home living environment, and it is clear that the defendant did mix with rather dubious characters, and it is perhaps the reason why he was led down this path to dealing in drugs for the sake of fast money.

The court is, however, comforted by the fact that the social welfare officer who has been following the case seems to be impressed that the defendant may have learnt his lesson and is willing to turn over a new leaf, and it is also clear that the defendant, since his remand in prison, has been greatly supported by his family, and hopefully, he can use this time in prison to better himself, learn a skill, complete his education, and perhaps come out and contribute to society and to the betterment of his own family circumstances.

Now, looking at sentencing, as Mr Boyton had correctly pointed out, the total narcotic content of the 1st and 2nd count is over 2 kilogrammes of ketamine, and according to the case submitted by Mr Boyton, HKSAR v Sin Chung Kin [2013] 1 HKLRD 627, it would appear that this would fall within the guidelines of about 18 to 20 years’ imprisonment after trial.

However, in this case, as also correctly pointed out by Mr Boyton, had there been no confession by the defendant, the police may not have so quickly been able to retrieve and discover the stash of dangerous drugs in Room B, and therefore this should also be recognised by the court in sentencing, as was said by the Court of Final Appeal in Z v HKSAR [2007] 10 HKCFAR 1823, and the Court of Final Appeal in that case mentioned that the discount should be about 40 per cent.

Now, in the first count, the defendant was in possession of 196 grammes of ketamine, which according to the guidelines laid down in the case of Hii Siew Cheng in 2009, it would call for between 50 to 300 grammes sentencing guidelines, which calls for 6 to 9 years’ imprisonment, and with one-third off, would therefore result in 5 years and 4 months’ imprisonment.

In the 2nd count, the 2.09 kilogrammes of ketamine, as I have said, it would fall in the Sin guidelines of 2,000 to 3,000 grammes, which would result in 18 to 20 years’ imprisonment after trial. So I would adopt an 18 years’ starting point, and give the defendant 40 per cent off, and that would result in a sentence of 10 and a half years’ imprisonment.

Now, what would the total sentence be? In considering the totality of the sentence, it is not only incumbent upon me to consider the total quantity, but the overall picture, and arrive at an appropriate sentence. As Mr Boyton pointed out, it is true that for Count 1, the defendant is only entitled to one-third off, and for Count 2, 40 per cent off. However, sentencing is not a mathematical formula to be adhered to indiscriminately. As the Court of Appeal has often said, sentencing is an art.

And having considered all the background to this case, which I have mentioned, the defendant’s arrest, his confession leading to the quick discovery of the drugs, which is an indication of his remorse, over and on top of his earliest plea, I will therefore sentence him in this way.

In the 1st count, he is sentenced to 5 years and 4 months, and in the 2nd count, to 10 and a half years, and both sentences will be served concurrently.