HKSAR v. CHAN KA YIU

HCCC 143/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 143 OF 2015

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REASONS FOR SENTENCE

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Introduction

1.  On 22 April 2016, the defendant pleaded guilty to the count in the indictment of trafficking in a dangerous drug prior to trial.  The drugs specified in the count consisted of 1,930 grammes of a powder containing 1,670 grammes of ketamine.  The street value of the drugs at the time of the offence was $254,760. 

2.  Sentencing of the defendant was adjourned for further inquiries in relation to assistance she indicated she could provide the authorities.  I was informed that the assistance proffered by the defendant was of no value and therefore will have no bearing on the sentence to be imposed on her.  This was supported by two statements from Customs officers. 

3.  A further adjournment was granted to file a statement from Customs officers concerning the assistance the defendant rendered during a controlled delivery operation and for the parties to address the issue of the application of the guideline cases for enhancement of a sentence where there is an international element with respect to the trafficking of ketamine, which I will address later in my reasons.

Case background

4.  The offence to which the defendant has pleaded guilty took place on 29 October 2014 when she was found in possession of the drugs.  She was arrested and charged, and on the next day she was brought before the Magistrates’ Court.  After committal papers were served and considered, she indicated on 2 April 2015 that she would plead not guilty to the offence.  Given the gravity of the offence, she was committed for trial in the Court of First Instance. 

5.  On 14 May 2015, upon the case being transferred to the Court of First Instance, it was fixed for a pre-trial review on 16 February 2016 and a trial on 25 April 2016 with 7 days set aside.

6.  On 16 February 2016, at the pre-trial review, the defendant was legally represented and it was indicated that she would contest the count on the indictment.  In consequence, various matters were discussed and arrangements were made for the trial. 

7.  On 15 March 2016, the solicitors for the defendant wrote to the Court and advised that the defendant would plead guilty to the count on the indictment.  As a result, the trial dates were vacated and the case was fixed for plea and sentence. 

Agreed facts

8.  The agreed facts giving rise to the offence are that on 29 October 2014, at 0339 hours, the defendant was intercepted by Customs officers as she was passing through Customs Clearance of the Arrival Hall of Lok Ma Chau Control Point.  The defendant was carrying a shoulder bag which was searched by the Customs officers.  They found inside two plastic zip-lock bags covered in A4 paper inside two brown envelopes.  The contents of the bags were the drugs as specified in the count on the indictment. 

9.  The defendant was arrested and cautioned, and in response she said that she knew the bags contained K Chai, which is a reference to ketamine, and that she had carried them into Hong Kong for a reward of $3,000 for each kilogramme of ketamine that she brought in. 

10.  The defendant was asked if she was willing to cooperate in making a controlled delivery.  She said she was willing to do so. She made several telephone calls purportedly to the collector, who she said was a friend whose name was “Fei Jai”, and that he had arranged her to bring the drugs into Hong Kong.  The Customs officers mounted a controlled delivery operation and waited for the person to come to collect the drugs but nobody appeared.  As a result, the operation was called off. 

11.  In a subsequent cautioned interview, the defendant refused to answer any questions. 

12.  The defendant now admits that the ketamine was in her possession for the purpose of unlawful trafficking by importing them into Hong Kong.

13.  A subsequent fingerprint examination of the contents of the defendant’s shoulder bag revealed that her fingerprints were on various sheets of A4 paper which covered the two zip-lock bags in which the drugs were found as well as the two brown envelopes. 

Defendant’s personal circumstances

14.  The defendant committed this offence when she was 24 years of age.  She is now 26. 

15.  She has prior convictions for robbery and common assault in February, 2007 when she was 16 years of age.  She was put on 12 months’ probation but soon after breached the terms of the probation order and instead was ordered to attend a rehabilitation centre.  She also has a prior conviction for attempted robbery in August, 2008, for which she was sentenced to 36 months’ imprisonment.

16.  The defendant attained an education up to Secondary 5 level in Hong Kong.  She is single and appears to have severed her ties with her family.  At the time of this offence, she did not have a fixed place of abode and would stay with friends.  She acknowledges that she has been abusing drugs since she was 17 and is addicted to Ice. 

17.  She has hitherto lived a wasted life which is a pity because she strikes me as an intelligent young person who could achieve good things if she puts her mind to it.

Tariffs for trafficking in ketamine

18.  The sentencing regime for trafficking in ketamine is governed by guidelines laid down in S for J v Hii Siew Cheng [2009] 1 HKLRD 1 and for large quantities of the drug further guidance has been provided in HKSAR v Sin Chung Kin [2013] 1 HKLRD 627 and HKSAR v Chow Yau Ching [2014] 2 HKLRD 639.  The latter cases suggest terms of imprisonment for large quantities of the drug for 2,000 to 3,000 grammes, no less than 18 to 20 years; over 3,000 grammes, 20 years or more. 

19.  In HKSAR v Sze Kin Wong [2014] HKEC 1195, Lunn VP said that the latter cases were not laying down guidelines but rather making it clear that the larger the quantity of the drug involved, the more severe the sentence will be.

20.  In the case of Hii Siew Cheng, the Court of Appeal provided guidelines for sentencing after trial for traffickers in ketamine and fixed a sentence of 14 years upwards for over 1,000 grammes.  In accordance with the sentencing cases I have mentioned and given the circumstances of the case, I adopt a starting point for 1,670 grammes of ketamine of 15 years’ imprisonment.  

Guideline enhancements for international element

21.  When sentencing for trafficking in a dangerous drug, a sentence may be enhanced for the presence of an international element. This has received considerable attention by the Court of Appeal in the decision of HKSAR v Abdallah Anwar Abbas [2009] 2 HKC 197, where Stuart-Moore VP, giving the judgment of the court, explained at §21:

“21. It has long been accepted that the international element in trafficking, whether by importation or by exportation, is to be regarded as a factor in material aggravation of the offence for sentencing purposes, whereas ‘local’ offences, confined to trafficking in Hong Kong, will usually result in lower starting points for about the same quantity of heroin or cocaine. …”

22.  He went on to examine in detail the extent to which an international element had been taken into account in past cases as an aggravating factor when sentencing for trafficking in heroin and cocaine.  He noted that this was in fact expressly articulated as long ago as in R v Lau Tak Ming [1990] 2 HKLR 370.  He also noted that the international element in trafficking includes trafficking across the border with mainland China. 

23.  When addressing aggravating and mitigating factors, he made these comments at §32:

“32. ... There are a number of factors that must go in aggravation of this offence including, but not limited to, the international element, the organising role played by the offender, the use by the offender of the young or otherwise vulnerable, and the fact that the trafficker has engaged in trafficking on a previous occasion. As for mitigation, the grievousness of the offence – a description that is born of the recognition of the dreadful misery caused to victims and their families and the serious harm to society generally – dictates that meaningful mitigation, apart from the plea of guilty, is rarely available. The message must consistently be delivered, even to the vulnerable such as the relatively young and those who say they need money whether for themselves or for the benefit of family members who are ill, that the vast majority of vulnerable people do not succumb to pressure and do not resolve their problems by engaging in this illicit and dreadful trade.”

24.  In conclusion and in addition to providing further guidelines for very large quantities of heroin, he said at §§42 and 43:

“42. It will be an aggravating factor calling for the enhancement of the starting point where, for example:

(1) an international element is involved;

(2) the trafficker has previously been convicted of trafficking in dangerous drugs;

(3) the trafficker is shown to be a mastermind or senior player, such as a financier, in a syndicate; or

(4) the offender is shown to have engaged a young person to assist in the trafficking.

43. We do not envisage that the enhancement, for any of the reasons we have itemised, for amounts above 1 kilogramme will be less than 2 years’ imprisonment in addition to the new guideline tariffs we have set out.”

25.  Whilst this case was concerned with addressing the sentencing guidelines set out for heroin in Lau Tak Ming, the comments made about aggravating and mitigating factors would, where appropriate, apply to trafficking cases in general. 

26.  In HKSAR v Chung Ping Kun [2014] HKC 106, the Court of Appeal addressed the issue of an international element to trafficking cases involving Ice.  Cheung JA, giving the judgment of the court, said at §4:

“4. In HKSAR v Abdallah [2009] 2 HKC 197, [2009] 2 HKLRD 437 at paragraph 42, this Court held that if there is an international element in the trafficking there should be an enhancement of at least 2 years for drugs above 1,000 grammes. For drugs less than this amount, the enhancement is at the discretion of the Court, see, for example, HKSAR v Dewi Kartika Sari Binti Musli [2012] HKCU 2453 (CACC 101/2012 at para 5). Although both of these cases are concerned with heroin, the courts have applied this approach to other types of drugs, namely, cocaine and Ice.”

27.  He went on to suggest the following enhancements for an international element at §9:

“9. As a broad guideline for drugs of this kind below 1,000 grammes we will suggest the level of enhancement as follows:

1) Up to 250 grammes 6 months

2) Between 250 and 500 grammes 6 months to 1 year

3) Between 500 and 1,000 grammes 1 year to 2 years”

International element in trafficking in ketamine and ecstasy

28.  The cases that set out guidelines for enhancement of an international element concern trafficking in heroin, cocaine and Ice.  Within this category of what is commonly described as hard drugs, fall ketamine and ecstasy.  The question arises as to whether the guidelines suggested for enhancement of an international element in trafficking in heroin, cocaine and Ice, also apply to ketamine and ecstasy.

29.  The sentencing tariffs for trafficking in a dangerous drug are based on the amount of narcotic involved and a similar approach is taken in the determination of the level of enhancement for an international element.  The underlying rationale is the greater the quantity of drug, the greater the sentence. 

30.  It is the case that the sentencing tariffs for heroin, cocaine and Ice are basically the same to start with and when they reach an amount of over 600 grammes they follow the same tariffs.  However, the tariffs fixed for ketamine and ecstasy are different in that they are less than those for heroin, cocaine and Ice, especially when it comes to larger quantities. 

31.  For heroin, cocaine and Ice the tariffs for large quantities are 600 to 1,200 grammes of 20 to 23 years’ imprisonment; 1,200 to 4,000 grammes of 23 to 26 years’ imprisonment; 4,000 to 15,000 grammes of 26 to 30 years’ imprisonment; and over 15,000 grammes at the sentencer’s discretion.  See HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437.  Compare this to ketamine and ecstasy where the tariffs for large quantities are 600 to 1,000 grammes of 12 to 14 years’ imprisonment; over 1,000 grammes of 14 years upwards, with suggestions for 2,000 to 3,000 grammes of no less than 18 to 20 years and over 3,000 grammes of 20 years or more.

Submissions on enhancement for international element

32.  In submission, Mr Ian Polson, representing the prosecution, argues that the level of enhancement for an international element in relation to ketamine should be adjusted downwards by 20% from that of heroin, cocaine and Ice based on a comparison of the two tariffs according to the quantity of drug. 

33.  Whilst I agree with this approach, Mr Polson has only focused on the tariff guideline for 10 grammes of heroin which is 5 years’ imprisonment and compared it with 10 grammes of ketamine which is 4 years’ imprisonment, thereby arriving at a 20% difference between the two tariffs.  In order to make a proper comparison between the two tariffs one has to examine them overall.  

34.  I am of the view that a more accurate percentage difference between the tariffs as determined by the quantity of the drugs is about 50% and therefore an enhancement of sentence for an international element for ketamine and ecstasy would be less this percentage than the level of enhancement for heroin, cocaine and Ice, although I would prefer to set a guideline based on the weight of the drugs which I will do later in my reasons.

35.  The approach suggested by Mr Polson was adopted by the Court of Appeal (Lunn JA and Saw J) in HKSAR v Zhang Saiqiong, CACC 333/2011, 5 July 2012, unreported.  In giving the judgment of the court, Lunn JA (now Lunn VP) addressed a similar situation to the present case and endorsed the approach of the sentencing judge in making a commensurate adjustment downwards for an international element in trafficking of ketamine. He referred at §6 to the enhancement of the starting point for the international element by the sentencing judge in that case and said:

“6. … In doing so, he said that he had regard to the judgment of this court in HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437, in which case it was suggested that an enhancement of sentence for the fact of an ‘international element’ was appropriate and that in the case of one kilogram of heroin hydrochloride it should be not less than two years’ imprisonment. Having regard to the fact that the dangerous drug in which the applicant unlawfully trafficked was ketamine and not heroin for, which different tariffs are set in relation to the weight of the drugs, the judge said that he took an enhancement of sentence that was commensurately less.”

36.  Mr Leung Chun-keung, representing the defendant, argues that the enhancement for an international element for ketamine should be determined not in terms of comparing the quantity of drugs but by comparing the starting points.  For instance, he argues that if 15 years’ imprisonment is adopted as a starting point in the present case then the same starting point for trafficking in heroin is fixed for 400 grammes and therefore the enhancement for an international element for ketamine should be less than 1 year because the enhancement for trafficking of 500 grammes of heroin is 1 year. I disagree with this approach.  It is not the way the appellate courts have approached fixing the sentencing tariffs for trafficking in a dangerous drug which is based on the nature and weight of the drugs.

37.  Based on the pronouncements by the Court of Appeal for the two different tariffs and level of enhancement for an international element for heroin, I would suggest the following as a broad guideline for the level of enhancement for an international element in trafficking of ketamine and ecstasy:

1) Up to 400 grammes 6 months

2) Between 400 and 1,000 grammes 6 months to 9 months

3) Between 1,000 and 1,500 grammes 9 months to 1½ years

4) Between 1,500 and 2,000 grammes 1½ years to 2 years

38.  The concept of an international element envisages a range of characteristics with the key one being the smuggling of drugs in or out of Hong Kong.  The enhancement to be imposed on an offender in trafficking for the aggravating factor of an international element will require taking into account the type and quantity of the drugs, but it may also be necessary to bear in mind the nature of the international element and the circumstances in which the drugs were smuggled in or out of Hong Kong and the role played by the offender in smuggling the drugs.  

39.  In cases of trafficking in less harmful drugs, it would seem that the level of enhancement for an international element is at the sentencer’s discretion. 

International element in present case

40.  In the present case, the defendant went to mainland China to obtain the drugs in order to bring them back to Hong Kong. The drugs were contained in two plastic zip lock bags which were wrapped in paper inside two brown paper bags.  The defendant’s fingerprints were found all over these items.  She crossed the border with the two parcels of drugs in her shoulder bag.  This would all indicate that she played a prominent role in bringing the drugs here.  She should therefore receive an enhancement of 1½ years for the international element.  I will enhance the starting point by 1½ years to 16½ years. 

Sentencing of defendant

41.  Even though the defendant’s plea of guilty was entered just prior to trial, she is entitled to a one-third discount to her sentence for having done so. 

42.  Whilst the recent offer of assistance by the defendant did not produce any positive outcome, she did provide assistance to the Customs officers at the time of her apprehension for this offence by participating in a controlled delivery operation.  Although not successful, the fact remains that she cooperated and assisted Customs officers in the further investigation of this case.  I have ascertained for the purpose of sentencing, that the defendant’s cooperation and assistance was extensive.  She made a number of WhatsApp messages to the person she claimed was the collector as well as making several calls to numbers recorded on her phone.  She also took the Customs officers to a hotel room that had been booked by the collector for the purpose of bringing the drugs into Hong Kong.  I will therefore reduce her sentence for the assistance that she rendered the authorities by extending the percentage discount that she is to receive for her plea of guilty of one-third to 36 per cent. 

43.  Applying a discount of 36 per cent to the enhanced starting point of 16½ years, the resultant sentence is 10 years and 6 months’ imprisonment.

44.  I therefore sentence the defendant to 10 years and 6 months’ imprisonment.