HKSAR v. KAM TSZ KWAN

HCCC 138/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 138 OF 2014

-----------------

-----------------

-----------------------------------------

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

-----------------------------------------

COURT: Defendant, you have pleaded guilty to one offence of possession of dangerous drugs, namely 15.05 grammes of herbal cannabis, and to one offence of trafficking in dangerous drugs, namely 82.89 grammes of a crystalline solid containing 78.56 grammes of methamphetamine hydrochloride, otherwise known as “ice”, and 996.69 grammes of a powder containing 782.09 grammes of ketamine. You admitted the brief facts and I convicted you on those facts.

Briefly, what occurred is as follows.

At about 1623 hours on 3 November 2013, you were in a car parked opposite the Ground Floor, On Wo House, Tai Wo Estate, 12 Tai Po Road, Tai Po. Police officers found the following items hidden inside the vehicle:

(a) 15.05 grammes of herbal cannabis, one packet being in the glove compartment and two packets in the hand rest;

(b) 82.89 grammes of a crystalline solid containing 78.56 grammes of methamphetamine hydrochloride in three plastic bags in a black recycle bag under the driver’s seat;

(c) Also in that same bag, 996.69 grammes of powder containing 782.09 grammes of ketamine in two plastic bags;

(d) In that same bag, also were found weighing scales.

You unlawfully trafficked in the “ice” and the ketamine. The cannabis in herbal form was possessed for your own consumption.

The approximate values of the drugs found were as follows:

(a) The cannabis, $1,671;

(b) The “ice”, $46,667; and

(c) The ketamine, $120,59.

After arrest and caution, you accepted the cannabis was for your own consumption, but said the other drugs were not your business.

You admitted to two previous convictions, one of which was similar, being trafficking in cannabis.

Mr Chung also indicated that you accepted the contents of the antecedents statement which tells me you are 24, born in the PRC and educated to Form 2. You have had various jobs, including delivery worker, warehouse keeper, transportation worker and construction worker. You are in good health and began using cannabis in 2013. You are married with a young son. Your parents, I am told, were divorced when you were very young.

On your behalf, Mr Chung entered the following mitigation. He told me that you came to Hong Kong when you were about one year of age. Your parents divorced when you were four or five years old and you have never seen your mother again. He confirmed your education and work history. You married in July of 2012. There is a son of two years of age. Your wife works in a boutique, I am told.

Mr Chung confirmed that he accepted that I should take a combined approach to sentencing. Whilst accepting that “ice” and ketamine are not directly comparable, he urged upon me the approach adopted by Tang VP in Wong King Kau [2010] 4 HKC 443. There the courts adopted an innovative approach by using the comparative sentencing tariffs and concluding that trafficking in 300 grammes of ketamine was roughly equivalent of trafficking in 60 grammes of “ice”. Thus the court in that case sentenced on the basis of converting the ketamine to notionalise and adding it to the quantity of actual “ice”. This led to an overall amount of “ice” and to apply the relevant sentencing tariff.

In paragraph 15 of Mr Chung’s exceptionally helpful submissions, one can see the calculation leading to the sentence on the basis of trafficking in a notional amount of “ice”, that being 313.56 grammes, attracting a starting point of in the region of 14 years’ imprisonment.

I turn now to the sentences to be imposed.

In arriving at those sentences, I considered all aspects of the case, including your difficult upbringing, the letter that you submitted to court, the facts and the effect of a substantial prison sentence on you, your wife and your child.

By far the main point of mitigation is your plea of guilty, even though it was not at the first available opportunity. I will give you the full one-third discount; the jury had not been empanelled and no prosecution witnesses were called.

I note the appropriate individual sentences for trafficking in 78.56 grammes of “ice” would be about 10 years’ imprisonment and for 782.09 grammes of ketamine, about 13 years’ imprisonment.

Having considered all factors, I am content to adopt the approach suggested by Mr Chung in paragraph 15 of his mitigation and sentence you on a notional figure of “ice”; that being 313.56 grammes, taking as a starting point 14 years and 3 months. As indicated, I give you the full discount of one third for your plea guilty. This means the final sentence will be one of 9 years and 6 months or, to put it another way, 114 months imprisonment.

The actually sentences imposed are therefore as follows. On Charge 1 that would be a nominal sentence of 7 days’ imprisonment and on Charge 2, 9 years and 6 months, and that will be served concurrently.

Therefore you will go to prison for a period of 9 years and 6 months.