HKSAR v. CHAN YAT HONG

HCCC 217/2023

[2024] HKCFI 1090

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 217 OF 2023

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one count of trafficking in dangerous drugs before Magistrate Ms. Vivian Ho, admitted to the summary of facts, and was on 31 July 2023 ordered to be committed to the Court of First Instance for sentence.

2.  Particulars of the count are that the defendant on 5 October 2021, at 4/F, Tak Lung Industrial Building, No 179 Wai Yip Street, Kwun Tong, unlawfully trafficked in a dangerous drug, namely 14,211.70 g of a solid containing 10,217.60 g of ketamine.

SUMMARY OF FACTS

3.  At around 2100 hours on 5 October 2021, ambushing Police officers saw the defendant entered Room 420 at the charge address.  The defendant was intercepted when he re-emerged 5 minutes later.

4.  Inside Room 420, a total of 86 plastic bags containing the subject dangerous drugs were found.  The defendant said under caution that the drugs belonged to his boss, who had told him to deliver them to someone.

5.  In the subsequent video recorded interview, the defendant said his friend, a TSE Wing Kit, had talked about how the defendant could do something to settle the debt the defendant owed to TSE about 3 months ago.

6.  In September, TSE told the defendant to get something from Room 420 and deliver them to someone.  The defendant went and saw that there was a lot of dangerous drugs there.  He called TSE and remarked that he was going to be trafficking in a large amount of drugs.  TSE said the drugs belonged to the boss ‘Ah Hau’ as well as some other people; that it was the boss who ordered the trafficking of the ketamine there, and that there was a controller who would tell TSE what to do.

7.  The defendant said he had been to Room 420 for 3 to 4 times.  On the second occasion he was there, the defendant saw that the sister of TSE had brought drug packaging paraphernalia, and she had taken some ketamine from there.

8.  The defendant said he was only responsible for delivering the smaller packages of ketamine while another team would deliver the bigger ones.  The defendant did weigh some of the ketamine inside Room 420.

9.  Before his interception, the defendant said he had collected a pack of ketamine and was on his way to deliver it to someone on the ground floor.

10.  The defendant provided the phone number and address of TSE to the Police.

11.  As at October 2021, the seized ketamine had a street value of $9,479,204.

12.  Through his admission to the summary of facts, the defendant admitted that he had unlawfully trafficked in the particularized dangerous drugs.

PREVIOUS CONVICTIONS

13.  The defendant was of clear record.

BACKGROUND AND MITIGATION

14.  The defendant was born in September 2004 and was 17 at the time of the commission of the offence, and 19 years and 7 months at the time of sentence. He is educated up to Form 3 level in Hong Kong.

15.  The defendant is the only child of the family.  His father was a drug user and had engaged in domestic violence towards his mother, who was the breadwinner of the family working as a logistics worker, earning $10,000 a month.

16.  After their divorce, the mother stayed with her brother while the defendant had to stay with his father.

17.  Faced with an unstable family situation, the defendant decided to quit school. He wanted to work but was unable to find it during the pandemic.  He managed to do odd jobs as a renovation worker or waiter, earning less than $3,000 each month.

18.  When they were living together, the defendant’s father would become emotionally unstable from time to time and had physically abused the defendant, kicking him out of their home, locking the door after the defendant.  This happened so often that the defendant decided to look for shelter somewhere, which eventually led to him living in low priced hotel accommodation.

19.  As it so happened, the defendant borrowed money from TSE to pay for such hotel accommodation.  When he was unable to repay TSE the borrowed money, TSE asked the defendant to do something in return, leading to his commission of the offence.

20.  The defendant had a pediatric tumor removed at birth, resulting in a medical arrangement that will be affecting him for the rest of his life.  The defendant, through Ms Wong’s submissions, says he understands “that his health condition is not a valid mitigating factor”[1].

21.  Ms Wong emphasized that the defendant had pleaded guilty at the first practicable opportunity.  Although he had failed to appreciate the serious legal consequences of his action, he is now deeply remorseful.  He is thankful for the unconditional love and support from his mother and grandparents.

22.  The defendant plans to sit for the Diploma of Secondary Education Examination in the coming year.  He is self-studying pending enrollment to courses, which can only be done after his sentencing.

23.  Ms Wong submitted that the defendant’s role was a courier.  He had made frank admissions and had cooperated with the Police.

SENTENCE

24.  The maximum sentence on conviction upon indictment for the offence is that of life imprisonment and a fine of $5 million.

Applying Herry Jane Yusuph

25.   In sentencing, I follow and apply the guidelines and 6-step approach set out by the Court of Appeal in HKSAR v Herry Jane Yusuph[2], as read in conjunction with HKSAR v Lee Ming Ho[3].

Step 1: The applicable guideline tariff bands

26.  For 10,217.60g of ketamine, the applicable guideline tariff band is that of “over 3000grammes – 20 years upwards”[4].

Step 2: The defendant’s role and culpability

27.  Ms. Wong says the defendant did not appreciate the seriousness of his action due to his young age and is hence less culpable.  I disagree that he did not so appreciate.

28.  According to the defendant himself, when he first went to the room and saw the large quantity of drugs there he had asked TSE about them.  He had, therefore, always known he was going to be dealing with a large amount of drugs.

29.  The defendant had been to the room on 3 to 4 other occasions.  While he is not being sentenced for those visits, the fact that he had been there a few times shows that he chose to go back and to be engaged in the trafficking activities he knew was going on there.  It is not a case where he was just told to take one packet and deliver it somewhere once.  The defendant said he had weighed drugs, he knew there were different sized and bigger packets of drugs, he knew there was another team dealing with the drugs.  The defendant knew it was a sizeable operation and still he decided to be involved.

30.  Based on those facts, I find that the defendant could not have been unaware of the seriousness of his action in this drug dealing operation.

31.  Given the fact that the defendant had assisted in weighing the drugs, and made deliveries, I find that his role and culpability is to be regarded as that of a courier or storekeeper.

Step 3: The relevant band within the guidelines

32.  Ms. Wong accepts that for trafficking in more than 3000g of ketamine, the sentence should be no less than 20 years’ imprisonment, and could exceed 20 years.

33.  Ms. Wong referred to the case of HKSAR v So Wing On (蘇榮安)  CACC 296/2012 where the facts are similar.  There the applicant was seen entering and then coming out from one of the units of a building.  He was stopped by Police officers and 21.31kg of ketamine was found inside the unit, together with a large quantity of re-sealable plastic bags.  The 37 year old applicant admitted that he picked up those drugs earlier on and had repacked them.  He would deliver the drugs on instructions, and was promised $2,000 for each successful delivery of 1kg of the drugs.  The estimated street value of the seized drugs was $5.8 million.  The applicant had 3 previous convictions, being one for robbery and two for possession of dangerous drugs.

34.  The Court of Appeal referred to the case of HKSAR v Sin Chung Kin where it was stated that the appropriate starting points for trafficking in 2kg and 3kg of ketamine should be no less than imprisonment for 18 and 20 years respectively.  “Where more than 3kg of ketamine is involved, the starting point may exceed 20 years, although the increase in sentence should not be proportional to the increase in drug quantity, and it would be for the sentencing court to pass such a sentence as is appropriate in the circumstances of the particular case”[5].

35.  The Court of Appeal agreed with the learned trial judge’s finding that the applicant’s “active and pivotal role called for a higher sentence”, referring to his fingerprints and palm prints being found on the packaging paraphernalia; and that he was a “forerunner in the drug trafficking and would deliver the drugs on instructions”[6].

36.  When compared, I find the defendant had a similar role to that of the applicant there, with the defendant also engaging in some re-packaging of the drugs and making delivery upon instructions received.

37.  The ketamine involved in So Wing On is about double the amount in the present case.  Unlike the defendant, the applicant was not of clear record and had 2 drug related convictions.  The defendant was also much younger when he committed the offence.

38.  Having considered all the circumstances regarding the defendant’s role and culpability as a courier and storekeeper, for the quantity of drugs involved, I will adopt a notional starting point of 21 years’ (252 months)  imprisonment.

Step 4: Aggravating factors

39.  There are no aggravating factors.

Step 5: Mitigating factors

40.  The defendant was only 17 at the time of the offence.  Although he was not of extreme youth, given the length of the sentence as a result of the quantity of drugs involved, together with his rather unfortunate personal circumstances, I find that I should reduce his sentence by 6 months to 20 years and 6 months (246 months).

Step 6: Totality

41.  I have taken a step back and examined the total notional sentence after trial of 20 years and 6 months.  I find that it is a fair, just and balanced sentence in all the circumstances.

FINAL SENTENCE

42.  The defendant is granted the full one-third discount for his timely guilty plea and is sentenced to 13 years and 8 months’ (164 months) imprisonment.