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HCCC 420/2015
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CRIMINAL CASE NO 420 OF 2015
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HKSAR |
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CHIU Kwok-ying, Edmond |
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| Date: |
23 March 2016 at 10.22 am |
| Present: |
Mr Frederic Whitehouse, on fiat, for HKSAR |
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Mr David W K Ma, instructed by WT Law Offices, assigned by DLA, for the accused |
| Offence: |
Trafficking in dangerous drugs (販運危險藥物) |
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Transcript of the Audio Recording
of the Sentence in the above Case
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COURT: The defendant pleaded guilty before me to a count of
trafficking in dangerous drugs. In sentencing, I have considered
the whole circumstances of the case including its nature and facts.
In particular, the type and quantity of the dangerous drugs
involved, the background of the defendant and mitigation put forward
on his behalf.
The facts of the case may be summarised as follows.
In the afternoon on 10 April 2015, when the defendant was approaching his car parked on a road at Yuen Long, he was intercepted by the police. Inside the carton box the defendant was carrying, two packets of ketamine were found.
The defendant was arrested. Under caution he admitted trafficking in the ketamine. Then a house search was conducted at the defendant’s home. Inside the bedroom the following items were found:
(1) a carton box containing ketamine put inside a bag;
(2) a storage box containing ketamine put inside 25 bags;
(3) a safe deposit box containing ketamine put inside three bags and ‘Ice’ put inside three bags;
(4) a sealing machine.
The defendant was further arrested. Under caution, he said all the drugs belonged to him. Then a search was conducted in his car. There, further ketamine was found inside the plastic bags put in the compartment box. The defendant admitted these drugs belonged to him as well.
In a subsequent interview the defendant admitted that he was to deliver all the drugs found to customers.
I was told that defendant is now 34 years of age. He has completed form 1 education in the mainland and came to Hong Kong in 1990 to join his mother. He has worked as a kitchen staff. He is single and was living with his parents.
The defendant is not a first-time offender. On four occasions he had been convicted: the first conviction was in 2003 for an offence of common assault. He was put on probation. In 2005 he was convicted for possession of a dangerous drug, a fine and a suspended sentence were imposed. In May 2013 for an offence of theft he was sentenced to 3 years’ imprisonment. In July 2015, he was convicted again for possession of a dangerous drug for which he was sentenced to receive treatment in a DATC.
Learned defence counsel, Mr David Ma, urged me to give full credit to the guilty plea of the defendant. He also stressed that there is nothing in the defendant’s background which would have adverse effect on the sentence.
The dangerous drugs the defendant trafficked in were ketamine as well as ‘Ice’. The total narcotic content were 2,013.20 grammes of ketamine and 12.29 grammes of ‘Ice’. The quantity of ketamine was much higher than that of ‘Ice’.
In consideration, I have considered the case submitted to me by Mr Ma, a Court of Appeal decision in HKSAR v Wong Kin Kau CACC 269/2009. I have also had regard to HKSAR v Chan Yuk Leong CACC 318/2013 and the case cited in it as well as the case of Lam Wah Kit CACC 195/2012.
In the circumstances, I am of the view that the combined approach is appropriate and ketamine is regarded as the primary drug for the purpose of sentencing.
The Court of Appeal suggested in the case of SJ v Hii Siew Cheng [2009] 1 HKLRD 1 that a sentence of 14 years’ imprisonment and upwards should be considered for trafficking in ketamine if the narcotic is over 1,000 grammes.
I bear in mind the case of HKSAR v Leung Wai Man CACC 24/2007 in which the Court of Appeal stressed that a sentencing court should avoid using an arithmetic progression in sentencing. Instead a court should exercise its discretion according to the circumstances of the case.
I have also considered cases such as the Court of Appeal decision in HKSAR v Sin Chung Kin CACC 458/2011 which is not meant to set down strictly a tariff. In that case it was suggested that for a case of trafficking in 2 kilograms of ketamine, the appropriate starting should be no less than 18 years.
I note that R v Lau Tak Ming [1990] 2 HKLRD 370, the Court of Appeal said that within the suggested bends a sentencing judge may take into account factors such as the profit which may reasonably be expected to be derived from the trafficking act, the degree of involvement of the offender and his previous history, if any, of narcotic offences.
In all the circumstances, taking into account that trafficking in more than one type of dangerous drug is an aggravating factor, in my judgment a starting point of 18 years and 3 months is appropriate and sufficient in the present case.
The defendant pleaded guilty. He is entitled to a one-third discount. Having considered the whole circumstances, including what learned counsel has said on his behalf, in my judgment this is the extent of discount the defendant is entitled to in this case.
By reason of the matters aforesaid, I sentence you to 12 years and 2 months’ imprisonment.
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