HKSAR v. CHENG WAI MING

HCCC 555/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 555 OF 2013

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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 to one count of trafficking in dangerous drugs before a magistrate, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He was committed to the Court of First Instance of the High Court for sentence.

The Summary of Facts

The facts disclose that on 13 July 2013, the defendant was intercepted at the Customs Arrival Hall at Lo Wu Control Point. A search of his person revealed two bags of white powder attached to the lower part of his legs. When he was asked what was inside the two bags the defendant replied they were “K chai”.

A further search revealed two further bags attached to his underwear. When he was asked what was inside those two bags, the defendant replied, “Ice”. A search of the defendant’s wallet revealed yet another bag of white powder inside. The defendant said the contents were “ice” when questioned. He further said the “K chai” and the “ice” belonged to him for his own consumption.

Later analysis confirmed the contents of the various items as follows:

(1) The two bags attached to his legs, a total of 0.24 kilogrammes of a solid containing 188.15 grammes of ketamine.

(2) The two bags attached to his underwear, one bag contained 0.25 kilogrammes of a solid containing 0.18 grammes of ketamine.

(3) Another bag contained 0.1 kilogrammes, that is 100 grammes, of a crystalline solid containing 0.10 kilogrammes of methamphetamine hydrochloride, that is “ice”.

(4) The bag found in his wallet, 0.06 grammes of a crystalline solid containing “ice”.

So the total amount of ketamine was therefore 490 grammes of a solid containing 368.15 grammes of ketamine. The estimated retail value was $59,290.

The total amount of “ice” was 100 grammes and the estimated retail value was $66,439.84.

The defendant admitted that on the day in question he was trafficking the dangerous drugs seized in this case.

The Background and mitigation

The defendant is a 36-year-old single man, but he had a son who is now aged 21 and is self-sufficient.

The defendant is not a first offender, having appeared in court on nine occasions and has 13 convictions, two of which were for possession of dangerous drugs.

In mitigation, his counsel, Mr Stephen Ma, informed me that as a result of family tragedies suffered last year, that is the death of his grandfather and sister, the defendant was under great financial burden to help raise the $200,000 needed for the funeral expenses. Under pressure, he started to abuse drugs again after staying clean for 10-odd years. His family was visited with further problems as both his parents needed to have surgery.

Mr Ma said the defendant is remorseful and he pleaded guilty at the first opportunity, that is before the magistrate, although knowing that he has to face heavy penalty for the offence. Mr Ma asked me to be as lenient as possible.

The defendant’s older sister had also written to me detailing the incidents that Mr Ma had already informed me. The sister also said that the defendant is a filial son who cares for his family and she asked for leniency from this court.

The Sentence

Trafficking in dangerous drugs is a serious offence and offenders are severely punished when caught. In the case of Secretary for Justice v Hii Siew Cheng [2009]1 HKLRD 1 the Court of Appeal set down guidelines for trafficking of ketamine. Trafficking 300 to 600 grammes of ketamine, the appropriate starting point is within the range of 9 to 12 years. The Court of Appeal had also set down guidelines for the trafficking of “ice” in the case of Attorney General v Ching Kwok Hung [1991]2 HKLR 125. For the trafficking of 70 to 300 grammes of “ice”, the starting point is one of 10 to 14 years.

Two types of drugs, that is “ice” and ketamine, are involved in this case. I have to decide whether to adopt an individual approach where an appropriate starting point is determined for each type of dangerous drug and they are combined into an overall starting point or a combined approach where a sentence for the most serious drug would be calculated before making an upward adjustment to take into account the significant quantity of the less serious drug.

The two cases on this is the case of HKSAR v Yip Wai Yin & Anor [2004]3 HKC 367 and also HKSAR v Ko Ka Hing [2009]4 HKLRD 856. As the Court of Appeal said in the case of Ko Ka Hing:

“As a rule of practice, where the sentencing brackets for the two types of dangerous drugs are not dissimilar, it is appropriate to adopt the ‘combined approach’.”

Moreover, the combined approach is often the correct one to enable the sentencing judge to sentence fairly, realistically and in a commonsense manner.

That is the case of HKSAR v Cheung Kwok Leung, Lowence [2003]3 HKLRD 542, cited in the case of Yip Wai Yin.

In this case the “ice” and ketamine cannot be said to be similar in seriousness. I think it is more appropriate to adopt an individual approach in this case.

I would add here that although Mr Ma asked me to adopt what he called an “unscientific method” by simply doubling the amount of narcotics on the basis of street value to come to a starting point, I am not prepared to do so as such a method is against what has been suggested by authorities.

Adopting the individual approach, for the ketamine, that is 368.15 grammes, a starting point of 9 years would have been appropriate, and for the “ice”, 100 grammes, a proper starting point would have been one of 11 years.

Bearing in mind the circumstances of this case and the defendant’s background, in particular the tragic deaths of his grandfather and sister, I am prepared to be more lenient and adopt a lower starting point. I am of the view that an overall sentence of 12 years is appropriate here.

The defendant is entitled to the usual one-third discount. Despite the skilful argument of Mr Ma, the authorities confirm that one third after plea is the high water mark, so I am not prepared to give more than one third.

So with a starting point of 12 years, after giving the defendant the one-third discount, the sentence is one of 8 years.