HKSAR v. LAI KIN WAH

HCCC 303/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 303 OF 2012

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REASONS FOR SENTENCE

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1. Before me, the defendant Lai Kin‑wah has pleaded guilty to two counts of unlawfully trafficking in a dangerous drug, namely, (1) 2.45 kilogrammes of powder containing 1.53 kilogrammes of ketamine, and (2) 1.1 kilogrammes of powder containing 0.66 kilogramme of ketamine. Both counts arose out of events that took place within a few hours or so on the same day.

2. The facts admitted are as follows.  On 18 January 2012, customs officers mounted an anti-narcotics operation at the Aberdeen Typhoon Shelter.  The defendant was seen on board a small fishing vessel (“Vessel A”) anchored about 50 metres outside the Aberdeen Fisheries and Marine Office (“the Marine Office”).  At 12:15 pm, the defendant disembarked from Vessel A and got on board a barge, which sailed up to a pier off the Marine Office.  He got off from the barge and walked towards a stationary taxi outside the gate of the Marine Office.  He walked up to the offside of the taxi and from the offside rear passenger seat he took out a golden bag and walked towards Hing Wai Industrial Centre where he got on board another barge, which sailed towards the direction of Wah Kwai Estate, Aberdeen.

3. At about 12:35 pm, the barge reached another small fishing vessel (“Vessel B”).  The defendant got on board Vessel B with the golden bag.  He opened a sliding door on the port side of Vessel B, put the golden bag inside and closed the door.  He returned to the barge which then sailed to the nearby Vessel A, and he got on board Vessel A. 

4. At 1:35 pm, Vessel A started to travel towards the direction of the eastern Aberdeen Typhoon Shelter.  About 10 minutes later, Vessel A berthed at the pier alongside the Marine Office.

5. At 2:20 pm, a taxi entered Aberdeen Fish Market Road and stopped outside the Fish Marketing Organization.  The defendant came out from the said Organization and passed a blue plastic bag to the nearside rear passenger of the taxi.  The taxi immediately left and the defendant returned to the said Organization.

6. The taxi, which travelled towards Causeway Bay, was followed by other customs officers. 

7. At 2:30 pm, near the junction of Russell Street and Matheson Street, the taxi was intercepted by customs officers.  A young man aged 17 years was found at the nearside rear passenger seat with the aforesaid blue plastic bag by his side.

8. Customs officers found from the blue plastic bag 10 zip-lock bags of ketamine, which formed the subject matter of count (1): 2.45 kilogrammes of powder containing 1.53 kilogrammes of ketamine.

9. At about 3:10 pm on the same day, the operation at Aberdeen turned overt.  Vessel A was still berthed at the pier alongside the Fish Marketing Organization.  The defendant was seen walking along the starboard side of Vessel A.  Customs officers approached the defendant and requested to search the vessel.  The defendant ignored the request.  He disembarked from Vessel A and walked up to the Fish Marketing Organization.  There he jumped into the sea.  After a short while, he returned to shore and was arrested.

10. The defendant was escorted to Vessel A for a search.  Two males were found on board Vessel A.  Inside a drawer of a mahjong table, customs officers found traces of ketamine.  The defendant was the tenant of Vessel A at the material time. 

11. The defendant was subsequently taken back to Vessel B for a search.  The golden bag mentioned before was found.  Inside there were a total of 5 plastic bags containing 1.1 kilogrammes of powder containing 0.66 kilogrammes of ketamine, the subject matter of count (2).

12. Under caution, the defendant stated that:

(a) The golden bag belonged to him, which he used for storing the ketamine.

(b) He placed the ketamine in Vessel B for storage purpose.

(c) He had no knowledge of the ownership of Vessel B.

(d) He rented Vessel A for transportation and fishing purposes.

(e) He denied knowledge of the 10 bags of ketamine seized from the blue plastic bag inside the taxi intercepted by customs officers in Causeway Bay.

13. The retail value of the ketamine under count (1) was around $271,950, whereas the retail value of the ketamine under count (2) was around $122,100.

14. In Secretary for Justice v Hii Siew‑cheng [2008] 3 HKC 323, the Court of Appeal set the sentencing guidelines for trafficking in ketamine.  For the quantities relevant to the present case, namely, count (1) 2.45 kilogrammes of powder containing 1.53 kilogrammes of ketamine, and count (2) 1.1 kilogrammes of powder containing 0.66 kilogramme of ketamine, it was held that for 300 to 600 gm – 9 to 12 years’ imprisonment and for 600 to 1,000 gm – 12 to 14 years’ imprisonment, whereas for over 1,000 gm – 14 years’ imprisonment upwards.

15. According to the guideline, for 1.53 kilogrammes, the proper sentence seems to me to be 14 years’ imprisonment upwards, and for 0.66 kilogramme, 12 to 14 years’ imprisonment. 

16. The total quantity that the defendant should be punished for is 2.19 kilogrammes, being 1.53 kilogrammes plus 0.66 kilogramme.  He was observed to have handled both the blue bag and the golden bag on the same day and I consider that since the two offences occurred as a series of actions taken by him on the same day, the appropriate starting point should reflect the total quantity instead of treating the matter as two separate offences.  This was also the approach I adopted in HKSAR v Tsang Hin Chung (曾顯宗) CACC 113/2004 (2 June 2004, unreported).  Considering the large quantity and the totality principle, the starting point for both offences should not be less than 18 years.  This is in line with two decisions of the Court of Appeal to which my attention has been drawn by Mr Derek Lai, for the prosecution.  In HKSAR v Ng Hon Keung [2012] 1 HKLRD 1017, the Court of Appeal considered as appropriate a starting point of 16 years’ imprisonment for trafficking in about 1.7 kilogrammes of ketamine, whereas in HKSAR v Sin Chung Kin [2013] 1 HKLRD 627, at 632, para 27, the Court of Appeal observed that for trafficking in 2,000 gm and 3,000 gm of ketamine, the appropriate starting point should respectively be no less than 18 years and 20 years.

17. Since in count (1) the ketamine was supplied to a 17‑year old young man, section 56A(2)(a) of the Dangerous Drugs Ordinance, Cap 134 is engaged.  It empowers the court to enhance the sentence of an adult for, inter alia, trafficking in a dangerous drugs, on information that the offence involved “(a) the procuring, supplying or trafficking by whatever means of a dangerous drug for or to a minor”. 

18. In HKSAR v Chan Ka Shing [2012] 2 HKLRD 220, D pleaded guilty to three counts of trafficking in cocaine.  In the first count, D handed ten packets containing 111.04 gm of cocaine inside a plastic bag to a 15‑year‑old boy.  The other two counts involved 112 gm and 117.27 gm of cocaine respectively found on D and in his residence.  The Court of Appeal considered that a total of 340.31 gm of cocaine being involved, the global starting point should be around 13 years’ imprisonment, which would be increased by an extra two years to reflect the seriousness of the case.  The Court stated:

“30. … Using a minor in drug trafficking is even more heinous. Any one would find the crime of drug trafficking abominable; however, when passing or enhancing the sentence, the court has still to exercise restraint to avoid increasing the sentence without limit, thus causing confusion and unfairness.”

19. Chan Ka Shing was cited in Ng Hon Keung, where D pleaded guilty to two counts of trafficking in dangerous drugs, one of which was for D handing a plastic bag containing 839.69 gm of ketamine to a 17‑year‑old youth.  The Court of Appeal held that section 56A(2), 56A(2)(a), 56A(2)(b) and 56A(2)(e) did not impose any requirement that D have knowledge of the age of the minor.  It considered that the enhancement adopted by the judge of 3 years and 4 months on top of a sentence of 8 years and 8 months after plea was too high, and the appropriate enhancement should be 1 year and 4 months.  The Court stated, in para 15 of the judgment:

“It will not be helpful to suggest any figure of increase as the degree of enhancement will depend on the context of the case. Where the original sentence, like the present one, is already a lengthy one, a sense of proportion must be considered.”

20. Returning to the present case, the defendant has two previous convictions, one drug-related being possession of a dangerous drug.  I do not consider that his previous convictions should aggravate his sentence. 

21. On the other hand, I do not see any mitigating circumstances in the defendant’s case save for his plea of guilty.  His counsel, Mr Tse, has impressed upon me that he was not the boss in these offences.  He merely acted according to instructions.  Nor did he know the young man or his age.  I accept what his counsel has said for him, so as not to aggravate his sentence. 

22. For the respective quantities of ketamine involved, I adopt as the starting point for count (1) 16 years of imprisonment and for count (2) 12 years of imprisonment.  Pursuant to the said section 56A(2)(a), and bearing in mind totality and proportionality, I consider an enhancement of 2 years’ imprisonment on count (1) that involved the young man as appropriate.  Therefore, for count (1), the starting point should be 18 years and for count (2), it remains 12 years.  The defendant has pleaded guilty to both counts and he is given the normal one-third discount for such plea.  In the result, the defendant’s sentence for count (1) comes to 12 years’ imprisonment, and for count (2), 8 years’ imprisonment. I order 1 year for count (2) to run consecutively to the sentence for count (1), making it altogether 13 years’ imprisonment.