HKSAR v. LAI YIU HIM

HCCC 171/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 171 OF 2016

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

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COURT: The defendant has been convicted on his own plea of two charges of trafficking in a dangerous drug. The dangerous drugs involved in both charges was ketamine. The guilty pleas were entered at the Eastern Magistrates’ Court on 8 April 2016.

The Particulars of Offence in respect of Charge 1 provide that on 28 August 2015, outside Ground Floor, Yee Yuet House (Block 2), Yee Ming Estate, Tseung Kwan O, New Territories, in Hong Kong, the defendant unlawfully trafficked in a dangerous drug, namely 491 grammes of a powder containing 337 grammes of ketamine.

The Particulars of Offence in respect of Charge 2 provide that on 28 August 2015, at Room 615, Yee Yuet House (Block 2), Yee Ming Estate, Tseung Kwan O, New Territories, in Hong Kong, the defendant unlawfully trafficked in a dangerous drug, namely 2.49 kilogrammes of a powder containing 1.77 kilogrammes of ketamine.

The Summary of Facts admitted by the defendant provides as follows:

Charge 1

At around 2020 hours on 28 August 2015, the defendant was spotted leaving Ground Floor Yee Yuet House (Block 2), Yee Ming Estate, Tseung Kwan O, while holding a black recycle bag. The defendant was intercepted. Upon search of the black recycle bag, two packets of a suspected dangerous drug (subsequently certified to be a total of 491 grammes of a powder containing 337 grammes of ketamine) were found. The defendant was arrested. Under caution, he said, “Ah Sir, I intend to take the ‘k chai’ to somebody to earn some wages for spending”.

Charge 2

The defendant was taken to his flat at Room 615, Yee Yuet House for a house search. A plastic box was found on the sofa behind some cushions. Inside the plastic box, there were three packets of a suspected dangerous drug (subsequently certified to be a total of 2.49 kilogrammes of a powder containing 1.77 kilogrammes of ketamine). In addition, a consignment box containing a machine which appeared to be a vacuum cleaner was also found. The defendant was arrested again. Under caution, he said, “Ah Sir, I prepare to deliver this ‘k chai’ to somebody. Together with the two bags for which you have arrested me, I will have $2,000 as wages after delivering all of them. It has nothing to do with my family, they don’t know anything”.

Later, on the same day, a video-recorded interview was conducted with the defendant, in which he further stated, inter alia, the following under caution.

(1) In late August 2015, he received a message from someone he did not know in “WeChat”, asking him if he wanted to make quick money. He replied “yes”;

(2) Later, the person asked him to deliver dangerous drug ketamine on “WeChat”;

(3) The person asked him for his address and he gave it to him;

(4) One day, the person told him to pick up a paper box at a flowerbed near the building of his home, and he did so;

(5) The paper box contained a machine that looked like a vacuum cleaner. The person instructed him to take out two bags of ketamine inside the machine and go to Sheung Shui by taxi;

(6) He opened the machine and found three large packets and two smaller packets of ketamine;

(7) He used a plastic box to store the three larger packets at home and placed them on the sofa; and

(8) He went out with the two smaller packets of ketamine. He was then intercepted and arrested.

As in August 2015, the street value of all the ketamine seized was HK$384,549.

By way of personal background, the defendant is 21 years of age. He was born in Hong Kong in December 1994. The defendant has received education up to secondary Form 3 level in Hong Kong. After leaving school in 2009, the defendant had worked as a part-time construction site worker, and later, a part-time salesman, earning around $9,000 a month.

The defendant is single. At the time of his arrest, he was living with his mother and his sister in a public housing estate.

The defendant has one previous conviction for possession of dangerous drugs. That was recorded in 2009, for which the defendant was put on probation for 18 months.

By way of mitigation, Ms Juliana Chow submitted on behalf of the defendant that he is remorseful, as is shown by his guilty pleas at the first opportunity in the Magistrates’ Court.

I was told that after having successfully completed the probation order imposed in 2009, the defendant managed to stay out of trouble for an extensive period of time.

However, he started taking drugs again. Worse still, the defendant got acquainted with someone through the “WeChat” application on his mobile phone, who offered him quick money for delivering ketamine. I am told that the defendant was promised only a few thousand dollars for trafficking the drug involved in the present case.

Mitigation letters from respectively the defendant, the defendant’s mother and the defendant’s social worker have been handed up to the court. Their contents have been duly noted.

However, as has been pointed out by the courts on many previous occasions, personal and family circumstances of a defendant will offer little mitigation in serious cases of drug trafficking, which call for severe deterrence sentences in order to protect the public.

In the present case, the narcotic involved in Charge 1 is 337 grammes of ketamine. The narcotic involved in Charge 2 is 1.77 kilogrammes of ketamine. The total quantity involved is therefore 2,107 grammes of ketamine.

The dangerous drugs involved in Charge 1 and Charge 2 were seized from the defendant and his residence in the course of a single enforcement operation and separately charged. In those circumstances, it is clearly appropriate to sentence the defendant on the total quantity of dangerous drugs (ie, 2,107 grammes of ketamine), rather than on the individual smaller quantities.

Accordingly, I shall first consider the overall sentence to be imposed, based on the total quantity of narcotic involved in Charge 1 and Charge 2.

The quantity of ketamine involved in this case is very substantial. In fact, some way beyond the uppermost band of 1,000 grammes in the case of Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, which sets out the tariffs for trafficking in ketamine. In the Hii Siew Cheng case, the Court of Appeal held that for trafficking in over 1,000 grammes of ketamine, the proper sentence after trial should be 14 years upwards.

In HKSAR v Sin Chung Kin [2013] 1 HKLRD 627, the Court of Appeal, having considered the rate of enhancement of starting points for trafficking in large quantities of other dangerous drugs (such as heroin and “Ice”), made the observation that the appropriate starting points for trafficking in 2,000 grammes and 3,000 grammes of ketamine should, respectively, be no less than 18 years and 20 years.

The analysis in the Sin Chung Kin case was reaffirmed by the Court of Appeal in HKSAR v Chow Yau Ching [2014] 2 HKLRD 639. In the Chow Yau Ching case, the Court of Appeal approved a starting point of 19 years and 9 months for trafficking in 2.89 kilogrammes of ketamine.

In my view, having regard to all the circumstances, and taking into account the authorities cited above, the appropriate overall starting point for sentence in respect of Charge 1 and Charge 2 should be 18 years and 2 months’ imprisonment.

I shall give the defendant the full one-third discount from the overall starting point for his timely guilty plea. This result in the total sentence of 12 years and 1 month’s imprisonment for Charge 1 and Charge 2.

In order to achieve the appropriate totality of sentence of 12 years and 1 month’s imprisonment, I order as follows:

(1) In respect of Charge 1, for the quantity of narcotic involved (337 grammes of ketamine), I adopt the starting point of 9 years and 4 months’ imprisonment. After affording the defendant a one-third discount, the sentence on Charge 1 is 6 years and 2 months’ imprisonment;

(2) In respect of Charge 1, for the quantity of narcotic involved (1.77 kilogrammes of ketamine), I adopt the starting point of 17 years’ imprisonment. After affording the defendant a one-third discount, the sentence on Charge 2 is 11 years and 4 months’ imprisonment

(3) 5 years and 5 months of the sentence on Charge 1 is to run concurrently with the sentence on Charge 2 (with 9 months to run consecutively). This results in a total sentence of 12 years and 1 month’s imprisonment on Charge 1 and Charge 2.