HKSAR v. LEE KA KEUNG AND ANOTHER

DCCC185/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 185 OF 2009

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

----------------------  

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

Reasons for Sentence

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

1.  D1, Lee Ka-keung, and D2, Tse Kwok-ming, appeared before me today and they plead guilty to a charge of conspiracy to traffic in dangerous drugs.

2.  The offence took place on the 15th day of December 2008 outside Harbour Crystal Centre, No. 100 Granville Road, Tsim Sha Tsui, Kowloon.

3.  D1 and D2 admitted they conspired together to unlawfully traffic in dangerous drugs, namely, 15.19 grammes of a powder containing 12.07 grammes of ketamine and 200 tablets containing 22.45 grammes of MDMA and 0.61 gramme of ketamine.

4.  The facts as admitted by the defendants reveal that at around 0128 hours on the day in question, PC58120, PW1, arrived at the scene.  He was in plainclothes then.  D1 approached PW1 and asked PW1 if he was getting the stuff and if he wanted “K Jai” or “candy”.  PW1 asked how much they were, and D1 answered “K Jai” was $100 per packet and “candy” was $100 per pill.  PW1 said he wanted five packets of “K” and handed a marked $500 note over to D1.

5.  D2 told PW1 to follow him to get the stuff.  PW1 then followed D2 across Granville Road to a flowerbed outside the Science Museum.  D2 handed five resealable plastic bags containing white power (Exhibit E1) to PW1.  PW1 left and notified his colleagues that the transaction had been completed.  As a result, PC33554, PW2, and PC34209, PW3, intercepted the defendants and revealed their identity as police officers.

6.  PW2 searched D1 and found HK$14,870 in the right pocket of D1’s jacket, including the marked $500 note.  The officer arrested D1 and, under caution, D1 claimed he was only responsible for collecting money.  At the same time, PW3 arrested D2.  Under caution, D2 admitted that he was selling “K Jai” to earn a little money as he was in debt but D1 was not involved.

7.  PW3 searched D2 and found at the front left pocket of D2’s trousers a plastic bag containing 34 resealable plastic bags containing powder of a suspected dangerous drug (E2) and a cigarette box.  The cigarette box contained four resealable plastic bags with 50 blue pills inside each bag (E3).  Under caution, D2 said he was selling E2 and E3 for he was in debt and he asked for a chance.

8.  PW2 further searched D1 at the police station and found $5,500 cash in D1’s wallet.  D2 had $103 on him.

9.  D1, at a subsequent interview, claimed under caution that he was helping D2 to collect money because he was a good friend of D2.  D2 would direct people to pay him, and after that, he would tell D2 how much he had collected.  The people would then follow D2 to somewhere else, but he did not know why.  The money in his wallet belonged to him while the rest was collected from the others.

10.  D2, at a subsequent interview, claimed under caution that D1 was his good friend.  He cheated D1 to collect money on his behalf and D1 did not know that he was selling dangerous drugs.  He got the dangerous drugs from Ah Ming and if he sold all dangerous drugs, Ah Ming would pay him $3,000 to $4,000.

11.  E1, E2 and E3 were sent to the Government Laboratory for examination.  E1 was found to consist of five plastic bags containing a total of 1.9 grammes of powder containing 1.52 grammes of ketamine.  E2 was found to consist of 34 plastic bags containing a total of 13.29 grammes of powder containing 10.55 grammes of ketamine.  E3 consisted of a total of 200 tablets containing a 22.45 grammes of MDMA, commonly known as “Ecstasy”, and 0.61 gramme of ketamine.

12.  D1 and D2 admitted that, at all material times, they conspired together to unlawfully traffic in E1, E2 and E3.

13.  Ms Sujanani, with the consent of Mr Davies and Mr Chu, handed up to me a statement prepared by DSI Lewis of the Hong Kong Police Force.  The statement concerned the street value of the drugs in question.  Based on the information, Mr Lewis is of the view that the ketamine in question could have been sold at street level and fetched $1,807.  As for the 200 “Ecstasy” type tablets in question, they could have been sold at street level and fetched $15,200.  The average retail values of the drugs in question in December 2008 was, therefore, $17,007.

14.  The criminal record summary of D1 shows that he has three conviction records recorded against him with none similar.  As for D2, he has six convictions recorded against him with one in relation to possession of dangerous drugs, for which he was sentenced to DATC.

15.  The antecedent statement of D1 shows that he is now 25 years old.  He received education up to Form 4 level in Hong Kong, unemployed at the material time.  He is not a drug addict.  He is single and lives with his family.

16.  D2 is 21 years old.  He received education up to Form 1 level in Hong Kong.  He is a vehicle attendant.  He is not a drug addict, still single and lives with his family.

17.  Mr Davies in mitigation submits that D1 is aware of the sentencing guidelines.  Given the quantity of the ketamine and “Ecstasy” pills in question, the starting point would be in the region of four to six years, according to the tariff.  Mr Davies submits that D1 was not the mastermind.  He was only to collect the money and was not the one who supplied the drugs.

18.  D1 frankly admits that he sold the drugs for money.  He pleaded guilty before the court.  In fact, D1’s lawyer had written to court and asked for an earlier hearing date.  Mr Davies submits that D1 committed the offence because of family pressure and he wanted to get married and hence he was in need of money.

19.  D1 worked as a waiter and earned $8,000 per month on average.  He was living with his parents and his younger sister.  D1’s father is now over 60 years old and is unemployed.  D1’s mother is a cleaning worker, and a younger sister works as a waitress.  D1 would contribute half of his monthly salary for the support of the family.  D1 was last sentenced in year 2005.  The attempted robbery took place in 2004.  Since his release, D1 had been leading a law-abiding life for some time.

20.  Mr Davies submits three letters, one written by the mother of D1, one by the girlfriend of D1 and one by D1 himself.  The mother of D1 and the girlfriend of D1 both passed very favourable comments on D1.  They both asked for leniency from this court.  In his letter, D1 tells me he committed the offence because he was in need of money at the time.  He wanted to get married with his girlfriend.  He took the risk and transgressed the law.  Mr Davies submits that D1 has a very supportive family.  He is clearly remorseful and has clearly learned his lesson.  Mr Davies asked me to be as lenient to D1 as possible.

21.  Mr Chu, who appears for D2, submits that, as in the case of D1, D2’s lawyer had also asked for an earlier date.  Mr Chu submitted three letters, one written by D2, one by the mother of D2, one by the elder sister of D2.  Mr Chu submits that D2 submitted the offence because in November last year, D2 was told his mother was suffering from haemorrhoids and was in need of medical expenses.  He submits medical documents in support of the mitigation.  D2 needed $40,000 for the operation fees.  Stupidly, D2 committed the offence in question.  He wanted to earn some quick money to help his mother out.

22.  D2 had one previous for possession of DD, for which he was sentenced to DATC.  Since his discharge, D2 had quitted dangerous drugs, and he is only 22 years old now.  He pleads guilty to the offence, and he is supported by his family.  D2 is determined to lead a new life.  As for the role played by D2, Mr Chu submits that D2 was only asked to do the dirty job.

23.  In sentencing the defendants, I have taken into consideration the nature of the offence, the nature of the drugs involved and the quantity.  I bear in mind not only the drugs seized by the police but also the money found on D1, being proceeds from the trafficking activities.  As rightly pointed out by both counsel, the drugs in question, according to the tariff set down by the Court of Appeal in Hii Siew Cheng, Application for Review No. 7/2006 and Criminal Appeal No. 126/2007, the starting point would be in the region of four to six years.

24.  As I said, apart from the drugs seized by the police, the amount of money found on D1, being proceeds from the trafficking activities undertaken by them, is also relevant in the sentencing process.  Almost $15,000 was found on D1.  This shows that prior to their arrest, they had sold a considerable amount of drugs to others.

25.  I have noted the contents of the mitigation letters submitted by counsel.  D1 was in need of money as he wanted to get married.  As for D2, he wanted to earn some quick money to support his mother who was in need of money for medical expenses.  But the defendants should have known better the harm that the drugs could have caused to others.  The fact that the defendants were in need of money provided them with no excuse to engage in trafficking of dangerous drugs.

26.  I am aware of the role played by D1 and D2.  They were not the mastermind, and they are very much the foot soldiers on the frontline.  Given the quantity of the drugs involved and the drug money found on D1, on the facts before me, I take 5½ years as the starting point for D1 and D2 as I find them equally culpable.  The defendants are entitled to one-third discount for their guilty pleas.  For the reasons given, I sentence D1 and D2 each to 44 months’ imprisonment.