COURT: The defendant had pleaded guilty in the Magistrates Court to one count of trafficking in a dangerous drug, namely 2,980.59 grammes of a solid containing 2,584.25 grammes of ketamine. He was committed to the Court of First Instance for sentence.
The facts which he admitted to all too often happens in Hong Kong, is that on 21 January 2020, the defendant landed in Hong Kong from Kuala Lumpur. While undergoing Customs clearance, in his luggage was found boxes of purported food products in which were found, carefully packed, the drugs which is the subject matter of the charge. The defendant was arrested and cautioned and under caution he stated that it was Hung Jai who instructed him to bring the drugs to Hong Kong from Malaysia.
A video-recorded interview was taken from him in which he asserted that he was in financial difficulty. Because of his financial difficulty, then Hung Jai then asked him to bring the drugs from Malaysia to Hong Kong, and that he would get a reward of $10,000, but at the time of his arrest he had not yet received the reward. The estimated street value of the drug was about $1.5 million.
When the case was committed first to the Court of First Instance, it then became the time when it was adjourned because Mr Yuen said he had trouble in communicating with his client, and so asked Madam Justice Barnes to order a report on him. So the case was adjourned from 1 June to 21 June in order to obtain a psychiatrist’s and psychologist’s report. On 21 June, the defence again sought to adjourn the case to August in order to apply to reverse his plea, so the matter was adjourned to 24 August. On 24 August, Mr Yuen made the application to reverse plea in front of me.
This court, having considered the reports, the facts of the case, the affirmation of the defendant, the affirmation of counsel, Mr Ho, was of the view that the plea of the defendant was unequivocal and did not fall into any category laid down by the Court of Appeal in relation to allowing reversal of plea because, certainly, this is not a case of an unequivocal plea, he was properly represented, he was properly advised and it was his own choice to plead guilty. The duress he claimed was prior to the taking of his cautioned statement.
When he was represented in the lower court, Mr Ho had already explained his rights to him and about voir dire proceedings and said although the case is strong against him, they could hold out for a voir dire. If the judge should admit the cautioned statement, he still can fight it in front of the jury. So there was no question that he was under any mistaken knowledge as far as prior to plea was concerned. So I had no hesitation whatsoever in ruling that it was an unequivocal plea and that the defendant should not be allowed to reverse his plea.
So the case was therefore adjourned to today, or rather, it was adjourned to yesterday, but yesterday the defendant complained of chest pain and Mr Yuen therefore, very rightly, then applied for an adjournment in order for the defendant to be able to see a doctor. So the matter was then adjourned to today for sentence.
Trafficking in dangerous drugs, particularly ketamine, is a very serious offence. The sentencing guidelines that have been laid down in Hii Siew Cheng in 2009 said that for trafficking for over 1,000 grammes would merit a sentence of 14 years and upwards. In this case, the drug involved is considerable. The total narcotic content is 2,584.25 grammes of ketamine. As Mr Yuen correctly identified, it would merit a starting point sentence of between 18 to 20 years’ imprisonment. Also, there is the enhancement of 1 to 2 years for the international element, as the drugs were imported from Malaysia.
I will take 18 years as the starting point, and I will enhance it by 1½ years because in HKSAR v Chan Ka Yu [2018] 4 HKC 591, the Court of Appeal had stated that for trafficking in 2,000 grammes, the starting point should be no less than 18 years and that the enhancement for international element of drugs between 1,000 to 3,000 grammes should be between 1 to 2 years. So therefore, the starting point sentence would be 19½ years.
Now, as far as the reversal of plea is concerned, it has been stated before in the Court of First Instance as early as in the case of HKSAR v Wong Shih Kao in HCCC167/2010, where Madam Justice Maggie Poon, as she then was, had ruled that on a reversal application, unsuccessful reversal of plea, the defendant should not be given the full one-third discount and in that case, she only discounted the sentence by 25 per cent. That has never been taken on appeal. I am informed as well that there was another case before Andrew Chan J, the case of Tai Yan Ling. As Mr Yuen pointed out at paragraph 19(a) of his written submissions, HCCC411/2019, there, there was a reversal of plea application which was unsuccessful and in that case, too, Chan J only gave a discount of 25 per cent.
The fact is the defendant should not be treated as fully remorseful because the one-third discount not only includes an early plea, but also would take into account his remorse in the circumstances and apart from the time that has been wasted, the amount of public funds that have gone into this case, Mr Yuen said, well, it did not cause the prosecution any more work because although one police officer was asked to stand by, they did not need to do any extra work.
However, I beg to disagree because on this application of reversal of plea, Mr Chan certainly had to prepare the case and the police officers had to be told to be on standby, and so the court has to set aside the time to listen to all these applications, and I am therefore of the view, as the other High Court judges have, that this defendant should not be given the full one-third discount. So I will give the defendant a discount of 25 per cent. So from 19½ years, giving him the discount of 25 per cent, will reduce the sentence to the region of 14 years and 7 months. So I sentence him to 14 years and 7 months.