HKSAR v. LEE WAI KIT

HCCC 207/2019

[2019] HKCFI 2331

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 207 OF 2019

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

The defendant, Lee Wai-kit (李煒傑), was charged with two counts of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134. He pleaded guilty before a magistrate and was committed to the Court of First Instance of the High Court for sentence.

The facts of this case are relatively straightforward. The defendant was seen acting furtively and was intercepted by the police on the street. Upon search, a plastic bag containing what was later confirmed to be 55.8 grammes of a powder containing 46.3 grammes of ketamine was found, among other things, inside the defendant’s trousers pocket.

The defendant was arrested and under caution, he said he had been caught red-handed and he had nothing to say. He confirmed the substance was K Chai when asked by the police. So that was the 1st count.

The defendant was then taken back to his home for a home search under a search warrant. Inside the bedroom, the police found suspected dangerous drugs which were later confirmed to be:

(a) one plastic bag containing 176 grammes of a crystalline solid containing 175 grammes of methamphetamine hydrochloride, usually called ‘Ice’; and

(b) 33 plastic bags containing a total of 13.1 grammes of a powder containing 11.3 grammes of ketamine.

So that is Count 2. Apart from the dangerous drugs, the police also found three plastic bags containing resealable bags. There was a broken spoon. There were two electronic scales and three dehumidifiers.

The defendant was again arrested and cautioned. Under caution, the defendant admitted ownership of the dangerous drugs found and claimed that he was going to sell the drugs. He further said that his wife knew nothing about the dangerous drugs. On a table in the living room, HK$2,350 was found.

The defendant attended a video-recorded interview later and during the interview, he claimed that he had met someone called Ah Fai who told the defendant that this Ah Fai could sell K Chai and ‘Ice’ to the defendant who could then resell them to make a profit to make quick money. The defendant met up with this Ah Fai later and paid 40,000 for all the dangerous drugs seized in this case. Ah Fai also sold him the paraphernalia - that is the plastic bags, spoon, electronic scales and the dehumidifiers - for $500. The defendant knew the dangerous drugs he obtained from Ah Fai were ‘Ice’ and ketamine.

The defendant repackaged the ketamine into 33 packets, using the paraphernalia he bought from Ah Fai. Later on, the defendant received a call from Ah Fai, instructing him to deliver a bag of ketamine to another person called Ah Sing at a playground. However, nobody turned up. So the defendant went back home and he was intercepted by the police on his way home.

The defendant admitted there were 33 packets of ketamine, each weighed around 1 gramme, and he planned to sell the small packets each for $600 so as to earn 300 to $400 per packet. The total estimated street value of the dangerous drugs seized is around $106,332. The defendant admitted he knew he was in possession of all the dangerous drugs seized for the purpose of trafficking.

Background and mitigation

The defendant is a young man aged 21. He studied up to Form 1 level. He is not married but has a young son with his girlfriend. Though he is young, he is not a man with a clear record. In 2014 when he was 16, he was convicted of trafficking in a dangerous drug and claiming to be a member of triad society, and he was sentenced to a detention centre.

Ms Wong Kam-hing, mitigating on behalf of the defendant, urged me to be as lenient as possible to this young man who had stupidly committed the offences in order to make quick money to support his girlfriend and young son. Ms Wong informed this Court that when the defendant, an only child, was young, his parents divorced and he was brought up in a single-parent family by his father without his mum. He left school after obtaining Form 1 level and started working in construction sites, as a barman, in restaurants and as carpenter. He committed the offences mentioned when he was 16 and when he was too young and immature to appreciate what he had done. After he was released from the detention centre, he managed to stay out of trouble, met his girlfriend and had a son until he foolishly decided to make quick money to support them and committed the present offences.

Ms Wong impressed me that the defendant is truly remorseful which was demonstrated by his timely plea, and the defendant does not want his son to grow up without him as the father. I was informed that the defendant will continue to learn the trade as a cook while in prison so that he can then work to support his family upon his release.

Ms Wong accepted that there are sentencing guidelines for this type of cases, and she made it clear that she was not asking this court to depart from the guidelines. Nevertheless, Ms Wong submitted that due to the young age of the defendant, the court should balance punishment with rehabilitation in this defendant’s case and adopt a starting point at the lower end within the appropriate band.

Ms Wong has helpfully prepared a list showing the three different tests - that is the absurdity test, the conversion test and the ratio test which I will refer to later - and urged me to adopt the lower starting point.

The defendant himself has written to this Court, expressing his deep remorse in having committed the present offences. He said he was hoping to make quick money in order to marry his girlfriend and to provide for their son. He vowed to reform himself and asked for leniency.

Trafficking in dangerous drug is a serious offence. A person convicted of this offence on indictment is liable to life imprisonment and to a fine of $5 million. In the circumstances of the present case, where both offences were committed on the same day and the facts were clearly linked, in that the quantity of ketamine seized in Count 1 was obviously connected with the ketamine and ‘Ice’ seized in Count 2, the proper approach was to have regard to the total amount of dangerous drugs in Counts 1 and 2 to arrive at an overall starting point, and there are a few cases in support, for instance, the HKSAR v Chow Yu Chi (unreported) CACC 359/2000, HKSAR v Cheung Kwok Leung [2003] 3 HKLRD 542 and HKSAR v Wong To [2001] 4 HKC 499.

The total amount of ketamine involved in this case amounts to 57.6 grammes. That is 46.3 plus 11.3. As there are two kinds of dangerous drugs involved, I will adopt the “combined” approach, using the more potent ‘Ice’ as the base and adjust the starting point upwards after taking into consideration the quantity of ketamine. That is according to the case of HKSAR v Yip Wai Yin [2004] 3 HKC 367.

Now, the ‘Ice’ involved here amounts to 175 grammes which falls into the band of 70 to 300 grammes in the case of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, with a starting point of between 11 to 15 years. For the trafficking of ketamine, 57.6 grammes falls into the “50 to 300” category in the case of the Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, with a starting point of between 6 to 9 years.

As I have mentioned earlier, Ms Wong had helpfully provided me with a calculation sheet for the three tests. If all were ‘Ice’, 232.6 grammes would attract a starting point of 13 years and 10 months. The sentence to be imposed could therefore not be as high as 13 years and 10 months. Otherwise, it would have been absurd. As for the conversion test, 57.6 grammes of ketamine would be converted to 7.7 grammes of ‘Ice’. So 182.7 grammes of ‘Ice’ would attract a starting point of 13 years. If one uses the ratio test, the two kinds of dangerous drugs together would yield a total starting point of 12 years and 5 months.

I am prepared, after the impassionate plea made by Ms Wong, to adopt the lowest starting point of 12 years and 5 months here.

I now have to consider any aggravating factors. It is a fact that two kinds of dangerous drugs were involved here which indicated that the defendant had the ability to cater to a wider market, and that is to see the case of HKSAR v Chan Yuk Leong (unreported) CACC 318/2013. Now, I will just adjust the starting point of 12 years and 5 months slightly to make it one of 12½ years. That is 12 years and 6 months.

Though the defendant already had a previous conviction of trafficking in a dangerous drug, as he was only 16 at the time and sentenced to a detention centre, I will not treat that as an aggravating factor to increase the sentence. So the end result is that I will adopt a starting point of 12 years and 6 months. The defendant pleaded guilty at the earliest available opportunity and is entitled to the full one-third discount. There are no other reasons I can see to further reduce the sentence. So the sentence to be imposed for Count 1: 8 years and 4 months; for Count 2, also 8 years and 4 months; both sentences to run concurrently, making a total of 8 years and 4 months’ imprisonment.