HKSAR v. OR CHUEN CHUNG AND OTHERS

HCCC 73/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 73 OF 2012

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

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COURT: When this matter first came before me at a pre-trial review on 3 August 2012, Mr Lam, for the 3rd defendant, indicated that his client would be pleading guilty to the indictment. Mr Iu, counsel for the 2nd defendant, said that his client would be pleading not guilty, while Mr Leung, counsel for the 1st defendant, indicated that his client would not only be pleading guilty but was prepared to testify at the trial.

Accordingly, a further pre-trial review was held on 30 August 2012 to enable the police, in the meantime, to take a statement from the 1st defendant and serve it on all parties.

On that day, 30 August, the 3rd defendant confirmed his plea of guilty. The 1st defendant confirmed his intention to plead guilty and his willingness to testify in accordance with the statement he had by then given to the police. Mr Iu, for the 2nd accused, confirmed that his client had read the non-prejudicial statement given by the 1st defendant and was “almost certain to plead guilty himself,” however, there were certain issues concerning the Summary of Facts to be ironed out with the prosecution.

On 21 September 2012, at a further pre-trial review, all three defendants indicated that they would be pleading guilty to the indictment and a proposed draft Summary of Facts was then handed up to the court by Mr Yuen for the prosecution.

On 9 October, all three defendants entered pleas of guilty and pleas of mitigation were advanced on their behalf. Given the constraints of time as well as the necessity of reading a number of letters and authorities which were produced on behalf of two of the defendants, I adjourned sentence until this morning so as to properly consider this matter.

I have briefly set out the chronology prior to arraignment because it is clear that the 1st defendant’s intention to give evidence for the prosecution has had a significant effect on the 2nd defendant’s plea, even though he was not ultimately called upon to give evidence at trial. Whilst it does not detract from the discount to which the 2nd defendant is entitled, it does mean that the 1st defendant is entitled to more than the conventional one-third discount that he would have received for his early indication of plea. I shall discuss the extent of that discount when I deal with sentence in relation to his particular case.

The quantity of ketamine narcotic for sentencing purposes in this case is 351.84 grammes. If I were to take a strictly mathematical approach in accordance with the sentencing guidelines handed down in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD at page 1, the starting point for sentence would be 9½ years’ imprisonment.

However, this is not a case of somebody simply found at his home in possession of a substantial quantity of dangerous drugs. The unusual aspect of this case is that it concerns trafficking in action, using a private vehicle to package and sell drugs to customers, which vehicle was found equipped with numerous empty plastic bags, a spoon, electronic scales with traces of ketamine, and a substantial quantity of ketamine in the driver’s door, under the dashboard, on the carpets of the front passenger seat, the middle passenger seat and the rear passenger seat, on the rear passenger seat itself and inside a white bag hung from the dashboard.

Moreover, during a period of one hour and 23 minutes, six unknown people were observed getting onto the vehicle and alighting shortly thereafter. One of those was seen to have approached the vehicle, given money to the 1st defendant who then took something from the 2nd defendant and handed it to the man. The 1st defendant was seen to have got off the vehicle and placed things in the boot of the car, whereas the 2nd defendant was seen, on and off, to have alighted from the driver’s seat, walked to the boot of the car and then finally returned to sit in the car. Whereas the 2nd defendant drove the vehicle into the car park of Langham Place, it was the 1st defendant who drove the vehicle out of the car park.

Clearly, this was a trafficking operation using a private vehicle as a mobile distribution centre. It is a case of actual trafficking. Given that this is the real thing, traffickers observed in the act of trafficking, and given also the prominent roles of the 1st and 2nd defendants in operating this trafficking centre, it is my view that the starting point in their case should be one of 10 years’ imprisonment.

I see little to distinguish between the roles of D1 and D2 according to the observations of police officers, which observations are set out in paragraphs 3, 4 and 5 of the Summary of Facts.

I note that although the 2nd defendant is said by the 1st defendant to have given instructions to him and the 3rd defendant, it was the 1st defendant who, according to the 3rd defendant in interview, instructed him to deliver the ketamine and whom he saw packaging ketamine on the middle passenger seat when he arrived at the vehicle about half an hour after it had been parked in the car park. Moreover, the 1st defendant admitted that the vehicle which was central to this trafficking operation belonged to him.

In terms of the appropriate starting point, I see no meaningful distinction between the roles of the 1st and 2nd defendants.

I turn now to the individual sentences for the three defendants. As I indicated at the outset, not only has the 1st defendant all along indicated his intention to plead guilty, but he has provided the police with a non-prejudicial statement with a view to giving evidence at the trial. I have accepted that the service of that statement upon the 2nd defendant has been instrumental in his decision to plead guilty.

Plainly, the 1st defendant is entitled to a discount from the 10-year starting point over and above the normal one-third discount conventionally given for an early plea. Mr Leung, for the 1st defendant, submits that the appropriate discount in his client’s case should be between 46 and 49 per cent. For that proposition, he relies on HKSAR v Ng Chi Ming, Criminal Appeal No 570/2001, where the deputy judge at first instance had accorded a 49 per cent discount to a defendant who, like the 1st defendant, had indicated his willingness to give evidence against a co-accused who, ultimately, pleaded guilty.

The Court of Appeal accepted that the applicant’s intention to testify was one of the reasons which had caused the co-accused to plead guilty. However, the court went on to say, at paragraph 14 of the judgment, that:

“Given the limited degree and quality of his assistance to the authorities, the applicant, in our view, received a very generous discount of a further 4 years’ imprisonment in addition to the full one-third discount given to reflect his pleas of guilty.”

The application for leave to appeal against sentence was dismissed.

In the other case relied upon by Mr Leung, namely HKSAR v Tso Kin Hong & Another, Criminal Appeal No 503/2006, the court at first instance had given the two appellants a 46 per cent discount, again in circumstances where they had indicated their willingness to testify against a co-accused who ultimately pleaded guilty. This was enlarged to a 50 per cent discount at the appeal in view of further assistance given by the appellants to the authorities, after sentence, in relation to another man who was subsequently arrested, identified by the appellants, and who again pleaded guilty without the necessity of the appellants giving evidence against him at his trial.

However, the Court of Appeal twice referred to the 46 per cent discount given by the trial judge as a generous one. The court observed that:

“The cases established that subject to the circumstances of a particular case, the range of discount for someone who pleads guilty and provides assistance to the authorities would usually be between 40 and 50 per cent, depending upon whether the prisoner had given evidence in addition to providing material assistance.”

While the 1st defendant’s co-operation with the police in providing a non-prejudicial statement with a view to giving evidence at the trial of the 2nd defendant obviously deserves a greater discount than one-third, a discount in the range of 46 to 49 per cent as suggested by Mr Leung would, in my view, be overly generous.

In all the circumstances, in particular his plea and co-operation, I consider an appropriate sentence in the case of the 1st defendant to be one of 5 years and 9 months’ imprisonment.

In the case of the 2nd defendant, there are two matters which do not apply to the other defendants and which I cannot ignore for the purposes of sentence. The first is that upon his interception, he put up a struggle with a police officer who sustained abrasions over both forearms in attempting to subdue him.

Furthermore, the 2nd defendant has twice before been convicted of trafficking in dangerous drugs, the first time in the District Court in 2004 where he received a sentence of 1 year and 8 months’ imprisonment; the second and more serious occasion being in 2006, in the High Court, where he received a sentence of 6 years and 8 months’ imprisonment. I am told that both sentences resulted from pleas of guilty.

Although I accept that the defendant’s criminal record indicates that he has had a personal drug problem for over a decade, it is clear that he is also a persistent trafficker who is not deterred by lengthy sentences of imprisonment. For these reasons, I intend to enhance his sentence, but I shall also bear in mind that there must be some end to the cycle of offending and imprisonment which seems to have blighted his early life.

I am also conscious of the fact that he is currently serving a sentence of 8 months’ imprisonment for possession of a dangerous drug, his scheduled date of discharge being 14 November of this year.

Had it not been for the fact that the 2nd defendant is already serving a sentence for another offence for which he was on bail when the present offence was committed, I would have enhanced the sentence by 9 months’ imprisonment. However, bearing totality in mind and in all the circumstances, I assess the enhancement of the 10-year starting point in his case at 6 months’ imprisonment, making the starting point for the 2nd defendant one of 10 years and 6 months’ imprisonment.

From that starting point, the 2nd defendant will get a full one-third discount for his plea of guilty which was indicated at the second pre-trial review. He will accordingly serve a sentence of 7 years’ imprisonment.

The case of the 3rd defendant may be distinguished to some extent from that of the other two defendants. He arrived at the vehicle about half an hour after it had been parked and there is nothing in the observations of the police officers to suggest that he took an active role thereafter in what went on in the car park. When the vehicle was later intercepted on the street outside Langham Place, he was found, perhaps appropriately, in the rear passenger seat.

I am prepared to accept that he took a lesser role in this enterprise than the other two and to adopt, for this quantity of ketamine, a straightforward mathematical starting point under the guideline of 9½ years’ imprisonment. From that starting point, he will get a full one-third discount for his early indication of plea.

In his case, I am particularly impressed by the letters that have been written on his behalf and by himself. It seems to me that there is genuine remorse on his part and a real hope that he can turn his life around.

In trafficking cases, there is little room for manoeuvre by sentencing courts but I am prepared to make a very slight adjustment to reflect the mitigation advanced. The sentence in his case will be one of 6 years and 3 months’ imprisonment.

The individual sentences, therefore, in the case of the three defendants are as follows:

The 1st defendant will go to prison for 5 years and 9 months.

The 2nd defendant will go to prison for 7 years.

The 3rd defendant will go to prison for 6 years and 3 months.