HKSAR v. TSE WA KIN

DCCC 896/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 896 OF 2014

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REASONS FOR SENTENCE

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1.  The defendant has pleaded guilty to one charge of trafficking in a dangerous drug contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance Cap 134.

2.  The drug in question is ketamine and the quantity is 107.50 grammes of a powder containing 90.42 grammes of ketamine.

3.  The amended summary of facts admitted by the defendant reveal that on 15 August 2014 at around 1755 hours PC 58679 saw the defendant carrying a brown paper bag and acting suspiciously outside the ground floor of Yee Yip House Tsing Yi Estate New Territories.

4.  PC 58679 intercepted the defendant and upon search 16 resealable bags containing the drugs the subject of the charge were found in the brown paper bag.

5.  The defendant was arrested and under caution admitted he helped others to deliver the drugs.  He further admitted that about 1630 hours an unknown male had asked him to deliver the drugs for a reward of $2,000.

6.  Cash of $6,125.80 and one mobile telephone was found on the defendant.

7.  A search of his residence at Room 3515 Yee Yip House as aforesaid was conducted on the following day.  On a desk inside the defendant’s bedroom was a plastic bag containing 53 empty resealable plastic bags.  The defendant was further cautioned and under caution said the unknown man asked him to buy the small plastic bags in advance.

8.  The defendant was interviewed under caution on 16 August and the interview was video recorded.  During the interview the defendant said he had seen an online job recruitment advertisement offering a remuneration of $2,000.  He registered his mobile telephone number.  About a week ago somebody contacted him via “WeChat” and said he could receive the remuneration by bank transfer when the job was completed.

9.  On 15 August 2014 at around 1615 hours the defendant received a telephone call informing him to pick up some items and purchase some small plastic bags.  At around 1630 hours a man known to the defendant as “Sai Keung” passed him the brown paper bag containing the drugs at the Tsing Yi Commercial Complex.

10.  The defendant purchased the small plastic bags and then returned home.  At about 1700 hours he received another telephone call instructing him to deliver the bag containing the drugs the convenience store near the Tsing Yi bus terminus.  He thought the drugs were “ice”.

11.  The defendant committed the offence in order to earn some quick money.

12.  What is not clear from the account given to the police is the purpose of the 53 resealable bags found at the defendant’s home.  If he was in the act of delivering the drugs at the time of his arrest then the 53 bags found at his home were superfluous.  Alternatively when the defendant originally collected the drugs they were in one bag and he had repackaged them in which case the 53 could be the remaining bags from the repackaging operation.

13.  Mr Chu who appears for the defendant pointed out with reference to the photographs the 16 bags containing the drugs inside the brown paper bag were of different design to those seized at the defendant’s home and as such the defendant could not have been involved in the repacking of the drugs.

14.  The defendant is 21 years old and is of previous clear record.

15.  The sentencing guideline for trafficking in ketamine was set out by the Court of Appeal in Secretary for Justice v Hii Siew Cheng & Another [2008] 3 HKC 323.

16.  For amounts between 50 – 300 grammes the appropriate sentence after trial is between 6 and 9 years.

17.  There may be aggravating features which would justify the court adopting a higher overall starting point.

18.  The defendant may in some respects regard himself as being fortunate since he believed the drugs in question were “ice”.  Had he been caught trafficking this quantity of methamphetamine hydrochloride (commonly known as “ice”) he would now be standing before the Court of First Instance facing a starting point for sentence of between 10 and 14 years.

19.  Before hearing mitigation I invited the parties to address me on the issue whether the defendant’s intention to traffic in the drug “ice” was an aggravating factor.

20.  I invited submissions on this point since where a person is convicted of trafficking in a drug more potent than believed to be the Court can take into account an offender’s mistaken belief the drug was less potent type than in fact it was.  The sentence would be in accordance with the tariff for the drug actually trafficked with a discount given for the mistaken belief provided of course the Court is satisfied such belief was genuinely held by the offender.

21.  The defendant in the present case may in some respects regard himself as being fortunate since he believed the drugs in question were “ice”.  Had he been caught trafficking this quantity of methamphetamine hydrochloride (commonly known as “ice”) he would now be standing before the Court of First Instance facing a starting point for sentence of between 10 and 14 years.

22.  Whilst the defendant must be sentenced in accordance with the tariff for the drug he actually trafficked (that is ketamine) the question arises whether the intention to traffic in “ice” is an aggravating factor such as to justify a higher starting point than would otherwise be appropriate.

23.  Factors generally regarded as aggravating factors were set out by the Court of Appeal in HKSAR and Abdallah Anwar Abbas CACC 304/2008.  These factors include an international element, previous convictions, the trafficker is shown to be a mastermind or a senior player or the offender was shown to have engaged a young person to assist in the trafficking.  This list was not intended to be exhaustive and a mistaken belief of a drug more potent than the drug actually trafficked was not considered by the Court of Appeal.

24.  Ms Cheuk for the prosecution drew my attention to HKSAR and Li Oi Yee CACC 362 of 2010 but she conceded the case was not strictly on point since it related to a charge of attempting to traffic in a dangerous drug.

25.  Likewise the authority relied upon by Mr Chu namely HKSAR and Yip Wai Yin CACC 80 of 2003 since that appeal concerned the mistaken belief in a drug less potent than the drug actually trafficked.

26.  I do envisage some difficulty in taking a belief in a greater potency as an aggravating factor in assessing the appropriate enhancement  of the sentence.

27.  In all the circumstances I do not propose to treat the defendant’s belief he was trafficking in “ice” as an aggravating factor but I repeat the defendant should regard himself as fortunate that his intended criminality did not bring him before a higher Court facing a much longer sentence than I shall impose.

28.  In mitigation Mr Chu referred to the defendant's timely plea and his relatively young age.  He said the defendant had been a responsible school student given the position of a monitor/prefect and had taken part in the school sports activities.  After leaving school he took up work as airport security staff and subsequently as a hotel receptionist.  Neither job lasted beyond six months.  The defendant then took a bar tending course in Korea and upon completion of the 9 month course returned to Hong Kong and took up a job as bar tender in Tsim Sha Tsui.

29.  The defendant earns $8,000 per month out of which he pays the fees for his father's  care at the old age home, pays the outgoings for the housing unit and also supports his girlfriend whom he has known since May.

30.  In a mitigation letter the defendant expresses his remorse for his act and understands the seriousness of the offence.  He is determined to make the best use of his time in custody and start anew upon his release.

31.  Mr Chu has also directed my attention to a sentence handed down by HH Judge Dufton in this court in DCCC 657/2014.  I note in that case the defendant had just turned 18 at the time he committed the offence.

32.  The defendant is only 21 years old but nevertheless would have been aware of what he was getting into.  The facts behind this case suggest a well organized syndicate.

33.  The consequences  of becoming mixed up with dangerous drugs and in particular the trafficking in dangerous drugs are well publicized and it is regrettable that a young man now stands before this court facing a lengthy term of imprisonment in the expectation at the time of earning $2,000.

34.  However it is a pity the defendant did not think beyond his desire to earn quick money of the potential harm to other persons caused by the drug he was trafficking.  In this case the defendant believed it was “ice” and “ice” is well known for its addictive and harmful properties.

35.  The drug Ketamine is often favoured by the young who consume it either unaware of the short and long term damage it can cause to their health or in total disregard to that potential damage.

36.  Whilst the guideline sentence must be adhered to applying a strict mathematical calculation of the quantity of drugs to the guideline as a fraction is not appropriate.  It does however generally follow the greater the quantity within any specific band justifies a higher starting point within that band.

37.  In the present case the band is between 6 to 9 years for 50 to 300 grammes.  The amount of ketamine in question is 90.42 grammes.

38.  In all the circumstances  of this case I will adopt a starting point of 6 years and 6 months imprisonment.

39.  This will be reduced to 4 years and 4 months to reflect the defendant’s plea.

40.  I will reduce this to by a further 4 months to reflect the fact the defendant is of previous clear record and has at least shown himself responsible in providing for his father in the old aged home and seeking training for employment.  This level of responsibility at least shows some hope for the future notwithstanding the commission of this offence.

41.  Accordingly the defendant is sentenced to 4 years imprisonment.