HKSAR v. LEE CHUN NAM

HCCC 490/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 490 OF 2014

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

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COURT: The defendant, Lee Chun-nam, was charged with one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134. He pleaded guilty before a magistrate and was committed to the Court of First Instance of the High Court for sentence.

The Admitted Facts disclosed that on 13 May 2014, Customs officers were conducting an anti-narcotics operation at Mai Po Tsuen in Lok Ma Chau area. The defendant was seen driving a private car. The defendant alighted and entered House 141B. The defendant left the house about five minutes later and went to the car. He was intercepted and arrested.

The Customs officers used the key found on the defendant’s person to gain entry to one flat on the 1st floor of that house. Upon search, the following were found: (a) seven plastic bags containing a total of 5.15 kilogrammes of a powder containing 3.59 kilogrammes of ketamine; (b) a plastic bag containing 4.12 grammes of a crystalline solid containing 4.05 grammes of methamphetamine hydrochloride; (c) an electric blender containing 1.12 grammes of a powder containing 0.02 gramme of ketamine; (d) another blender containing 0.4 gramme of a powder containing traces of ketamine; (e) some plastic bags, four pairs of gloves, two sets of electronic scales; eight bags containing a total of 9.12 kilogrammes of a powder and 8 bags containing a total of 5.03 kilogrammes of a solid. The powder and the solid did not contain any dangerous drugs or Part I poison.

Under caution, the defendant remained silent. The street value of all the seized dangerous drugs was $630,224.08. The defendant admitted trafficking the dangerous drugs in this case.

The Background and Mitigation

The defendant is a 31-year-old man. He is married but his wife resides in the mainland. I was informed by his counsel, Mr Lee, that since the defendant’s arrest for this offence, the wife wanted a separation from him. Of course, physically, they are separated anyway because the defendant is locked up.

The defendant had two previous convictions but not drug-related. He was educated up to form 2 level and had worked as a transportation worker and a kitchen worker, earning about $9,000 a month.

Mr Lee informed me that the defendant’s aged father suffered from prostate cancer and received treatment both in Hong Kong and the mainland. After an operation in 2012, the defendant’s father continued to need medical attention and the medical bill was high. The defendant’s mother retired from her job as a cleaner and to look after the father, the defendant and a younger sister who worked as a waitress.

Before the offence, the financial burden was on the shoulders of the defendant. A month or so before the offence, the defendant’s financial position was so bad that he stupidly agreed to help a friend to rent the premises in question and to make delivery of drugs for a reward. He earned $3,000 for each delivery.

The defendant himself wrote to me to express his deep remorse and also inform me why he had committed the present offence. I understand now the burden of taking care of the father financially falls on the shoulders of the younger sister, the one who works as a waitress.

Mr Lee asked me to be as lenient as possible in passing sentence, while agreeing that the circumstances of the defendant does not take him out of the usual band, or the appropriate band.

Trafficking in a dangerous drug is a serious offence. A person convicted of this offence, on indictment, is liable to a fine of $5 million and to life imprisonment. There are two types of drugs involved in this case, 'Ice' and ketamine. Sentencing for the trafficking of more than one type of dangerous drug could be based on: (a) individual approach when an appropriate starting point was determined for each type of dangerous drug and they were then combined into an overall starting point; or (b) the combined approach where the most serious drug determined the starting point which can be adjusted upwards for significant quantities of the other drug.

As a rule of practice, where the sentencing brackets for the two types of dangerous drugs were not dissimilar, it was appropriate to adopt the combined approach. When the two drugs were disparate in quantity and potency, the individual approach was to be preferred. See the case of HKSAR v Ko Ka Hing [2009] 4 HKLRD 856. The Court of Appeal also said, in the case of Ko Ka Hing [2009] 4 HKLRD 856, the appropriate approach to be adopted is a matter of discretion for the sentencing court to be exercised in light of the circumstances of the particular case.

No matter which approach is taken, the paramount consideration, at the end of the day, is the totality of the overall starting point. The Court of Appeal cited the cases of Chan Ho Wai CACC129/2008, Yip Wai Yin & Anor [2004] 3 HKC 367, Cheung Kwok Leung [2003] 3 HKLRD 542 and Yip Pik Kwai [1999] 3 HKLRD 42.

As the 'Ice' and ketamine here are disparate both in quantity and potency, I will adopt the individual approach.

For the trafficking of 'Ice', the guidelines set down by the Court of Appeal in the case of Ching Kwok Hung [1991] 2 HKLR 125 is still applicable here as the new guidelines set down in the case of Tam Yi Chun [2014] 3 HKLRD 691 only takes effect from 9 June 2014 and this offence had taken place on 13 May 2014. According to the old tariff which is, in fact, the same as the new one in respect of a quantity of up to 10 grammes, the starting point is between 3 to 7 years.

Having considered the circumstances of the offence and the quantity involved, that is 4.05 grammes, the appropriate starting point is one of 4 years.

For the trafficking of ketamine, the Court of Appeal has set down the sentencing guidelines in the case of Hii Siew Cheng [2009] 1 HKLRD 1. For trafficking over 1 kilogramme, the appropriate starting point is from 14 years upwards.

The quantity involved here is 3,590 grammes, 3.59 kilogrammes. Where more than 3 kilogrammes of ketamine is involved, the starting point can exceed 20 years, although the increase in sentence should not be proportional to the increase of the drug quantity. The court should exercise its discretion to pass a sentence appropriate in the circumstances of the particular case. See the case of Sin Chung Kin [2013] 1 HKLRD 627.

In arriving at the appropriate starting point, I take into account the circumstances of the offence, the role played by the defendant, the reason why he committed the offence and the quantity of ketamine involved. I take into account the fact that the defendant’s father suffered from prostate cancer and the defendant was in financial difficulties at the time. While the last factor does not bring the defendant’s case out of the appropriate band of sentence or away from the guidelines, it would enable me to consider a lower starting point within the band.

When considering the overall appropriate starting point for both drugs, while 4.05 grammes of 'Ice' cannot be said to be a small amount, when one applies the conversion rate used in the case of Wong Kin Kau [2010] 4 HKC 443 to convert 'Ice' to ketamine, that is 1 to 5, the 'Ice' in question would be equivalent to 20.25 grammes of ketamine. Adding 20.25 grammes of ketamine to the already large amount of 3,590 grammes of ketamine would not have made any real difference. For this reason, I am of the view that the overall starting point of 21 years is appropriate.

The defendant had pleaded guilty at the earliest available opportunity and is entitled to the full one-third discount. I do not see any further ground to reduce the sentence. For the offence of trafficking in dangerous drugs, the defendant is therefore sentenced to 14 years’ imprisonment.