HKSAR v. CHEUNG KWOK PO AND OTHERS

DCCC 471/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 471 OF 2015

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REASONS FOR SENTENCE

1.  The defendants stand convicted after trial of one joint charge of conspiracy to traffic in a dangerous drug, contrary to sections 4(1)(a) and (3) and 39 of the Dangerous Drugs Ordinance[1]and sections 159A and 159C of the Crimes Ordinance[2].

2.  Full particulars of the conspiracy are set out in my reasons for verdict delivered on 8 January.  In summary on 15 November 2014 when D3 and D4 visited D1, a prisoner at Lai Chi Kok Reception Centre, D1 placed on the window of the visit point a piece of paper instructing D3 and D4 to post a packet of drugs hidden inside a 3D card to another prisoner, Wong Chi Chiu. 

3.  On 20 November 2014 an officer from the Correctional Services intercepted a red envelope containing a 3D card addressed to prisoner Wong Chi Chiu, inside which was hidden a packet of suspected drugs.  On analysis by the Government Chemist the suspected drugs were found to be 0.56 gramme of a powder containing 0.27 gramme of ketamine.   

Mitigation

4.  I have carefully considered everything said on behalf of the defendants by Mr Allan together with their mitigation letters submitted today, the contents of which Mr Allan has informed the court. I take into account D3 has no similar convictions and her only conviction was in 2006, which is now spent. 

5.  Mr Allan has submitted that the roles of D3 and D4 are minimal.  Arguably the role of D1 being the prisoner and the instigator is greater.  However without the agreement of the other defendants the crime would not have been committed.  In the circumstances I am satisfied no distinction should be drawn in sentence as between the defendants, all three joining the conspiracy at the same time. 

Guidelines

6.  In Secretary for Justice v Hii Siew Cheng[3]the Court of Appeal laid down guidelines for trafficking in ketamine.  Where the narcotic content is up to one gramme sentence is in the discretion of the court.  Where the narcotic content is between 1 gramme and 10 grammes sentence after trial falls within the range of 2-4 years imprisonment. 

7.  Although the quantity of ketamine is small, slightly over a quarter of a gramme, I regard the smuggling of drugs into prison as a seriously aggravating feature of sentence. 

8.  I am unable to find any similar sentence cases.  The only cases concerning smuggling of drugs into prison are where the defendant is charged with simple possession and not trafficking.  For example in Attorney General v Au Kwok Chai[4] the defendant prior to his incarceration swallowed a packet of dangerous drugs containing 0.06 gramme of heroin and in HKSAR v Yeung Kwok Wai[5]the defendant prior to his remand secreted a plastic wrapping containing 0.12 grammes of mixture containing heroin inside the zip of his trousers.  

9.  In Attorney General v Au Kwok Chai the Court of Appeal held that 12 months imprisonment was appropriate on a plea of guilty, indicating therefore a starting point of 18 months imprisonment.  This starting point has been followed in numerous cases since, including HKSAR v Yeung Kwok Wai [6]. 

10.  In Tam Wai Lun v HKSAR[7] the Court of Final Appeal refused leave to appeal against a sentence of 10 months imprisonment where the defendant had pleaded guilty and had told a prison officer that he had swallowed drugs prior to his remand in Lai Chi Kok Reception Centre.  In HKSAR v Chung Lam[8]a case concerning a very small quantity of midazolam which the defendant failed to surrender on his arrival at Lai Chi Kok Reception Centre, a starting point of 15 months imprisonment was held to be appropriate. 

11.  In all the cases the courts emphasised that the smuggling of drugs into prison is a serious offence and that deterrent sentences are to be imposed.  In my view conspiracy to smuggle drugs to a prisoner must attract a greater sentence than that imposed on a prisoner for possession of drugs he smuggled into prison.  In the circumstances I am satisfied the proper starting point after trial is 2 yearsimprisonment.

12.  D1 has eighteen convictions, five relating to drugs.  In 2008 D1 was sentenced to 32 months imprisonment for trafficking in drugs.  The last conviction was for possession of drugs.  I am satisfied D1 is a persistent offender by reason of which I increase the starting point by 3 months imprisonment.   

13.  D4 has two previous convictions both for trafficking in drugs.  In 2005 D4 was sentenced to 8 years and 9 months imprisonment and in 2012 was sentenced to 3 years and 4 months imprisonment[9]. D4 was released from prison in February 2014 and committed the present offence in November the same year.  I am satisfied in these circumstances the starting point is also to be increased by 3 months imprisonment.

Entrapment

14.  Mr Allan submits that because the Correctional Services did not stop D1 from displaying the piece of paper there is an element of entrapment.  I am satisfied there is no entrapment whatsoever in this case.  The action or inaction by the Correctional Services played no part in the defendants agreeing to traffic in a dangerous drug (see for example HKSAR v Ejegi Godspower[10]).

Agreement of the prosecution case

15.  Relying on the decision in HKSAR v Xu Xia Li & another[11], Mr Allan submits credit should be given by reason of the defence admitting most of the prosecution case.   

16.  The admitted facts initially related to the seizing of the letter addressed to Wong Chi Chiu; the arrest of the defendants; photographs; analysis of the drugs and that the defendants were in Hong Kong during the period of the conspiracy. Whilst these admissions saved time these were matters which, as Mr Allan accepts, were indisputable. 

17.  Mr Allan further submits that the cooperation of the defendants is shown by the fact that they attended trial whereas D2 absconded on the first day of trial, which was listed for seven days.  The trial was adjourned to the following day not only to locate D1 but also because of difficulties faced by the prosecution regarding the accuracy of the transcripts of the audio recording of the prison visits.  The need for transcripts and the accuracy of the transcripts arose by reason of the defence requesting an English trial.  

18.  The following day the prosecution elected to proceed against D1, D3 and D4 only. The parties then applied for an adjournment to agree the evidence of the transcripts.  The next day agreement was reached and the trial started. 

19.  Although agreement led to a reduction in the number of witnesses called by the prosecution from twenty six to five, the remaining witnesses gave evidence over four days.  Closing submission was made by the defence on the seventh day of trial.  I am satisfied in the circumstances no reduction should be given on account of the fact part of the case was admitted by the defence. 

D4’s voluntary work

20.  Mr Allan submits that credit should be given to D4 for his voluntary work as set out in the letter from Big Union Motors (Group) Ltd and shown in the photographs submitted to court.  Discount is generally reserved for those who have a clear record and can by their voluntary work show they are of positive good character. Although D4 is not a person of good character, let alone positive good character, I am of the view the court should recognise his voluntary work. Accordingly I reduce the sentence of D4 by half a month. 

Sentence

D1 is sentenced to 2 years and 3 months imprisonment;

D3 is sentenced to 2 years imprisonment;

D4 is sentenced to 2 years and 2½ months imprisonment.