HKSAR v. KAM HO CHING

HCCC 19/2024

[2024] HKCFI 1908

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 19 OF 2024

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to two counts of trafficking in a dangerous drug before Magistrate Ms. Tsui May-har and was committed to the Court of First Instance for sentence. The defendant had confirmed his pleas before me.

2.  Particulars of count 1 are that the defendant on 24 September 2021, outside Shop no.81, 1^st floor, Hung Hom Square, Nos.37-39 Ma Tau Wai Road, Hung Hom, unlawfully trafficked in a dangerous drug, namely 2.39g of a solid containing 2.07g of ketamine.

3.  Particulars of count 2 are that he on the same day, at Shop no.81 at the same Hung Hom Square, unlawfully trafficked in a dangerous drug, namely 199.42 kg of a solid containing 170.38 kg of ketamine.

SUMMARY OF FACTS

4.  The defendant was seen entering Shop no.81 of Hung Hom Square shopping mall at 2:39pm on the charge date.  He left the shop holding a white plastic bag at 2:46pm.  Police officers who were on an anti-narcotics operation went up to intercept but the defendant ignored them and walked on quickly.  He was eventually stopped.

5.  The key to the shop was found in the defendant’s trousers pocket.  The dangerous drugs in charge 1 were found inside the white plastic bag that he was carrying and he was arrested for trafficking in dangerous drugs.  He said under caution that a ‘Tai Choi’ had asked him to pass the drugs on to someone in Whampoa.  He thought the drugs was ‘ice’ (common street name for the dangerous drugs methamphetamine hydrochloride).

6.  The defendant was brought back into shop 81 where 10 large nylon bags each containing 20 tea leaf packages were found.  There were a total of 200 packages, which contained all the dangerous drugs in charge 2.

7.  The Police also found 40 silver aluminium bags, one handcart, one backpack, two letters addressed to the defendant at the shop’s address, a paper bag with a roll of adhesive tape, and 7 stacks of re-sealable plastic bags in the shop.

8.  The defendant was cautioned again, and he said he took the 10 nylon bags from Tuen Mun to the shop on the Thursday before.  He opened one of the tea leaf packages and sent a photo to ‘Tai Choi’, who had promised to pay him $20,000 per month.

9.  In the subsequent cautioned video recorded interview, the defendant said he was introduced to ‘Tai Choi’ by two men he met at a bar in Tsim Sha Tsui in late August 2021.

10.  One of the men, ‘Champion’ gave him an iPhone for communication with ‘Tai Choi’.  He was promised $20,000 per month for helping ‘Tai Choi’ to deliver drugs.  He had not received any money yet.

11.  ‘Tai Choi’ told him to rent a shop at Hung Hom Square mall, which he did.  ‘Champion’ gave him $30,000 cash for the rental.  The defendant changed the door lock as instructed by ‘Tai Choi’.  The defendant kept one set and gave the other set of keys to ‘Champion’.

12.  On 8 September, ‘Champion’ gave the defendant $2,000 and told him to buy some tape to cover up the shop’s glass to block the view from outside.  He was also told to buy a can of paint to pretend that the shop was being renovated, in addition to three backpacks, a CCTV camera and a wi-fi router.

13.  On 16 September, as instructed by ‘Tai Choi’, the defendant met up with a 7-seater vehicle parked near Yau Oi Estate in Tuen Mun at 7am.  The vehicle had a driver, and there were many nylon bags and a handcart inside.  The defendant got on and was driven to Hung Hom Square where he unloaded all the nylon bags and put them inside the shop.

14.  ‘Tai Choi’ called and told the defendant to open one of the nylon bags to take a photo for him.  The defendant asked, and ‘Tai Choi’ told him they were drugs inside.

15.  ‘Tai Choi’ called the defendant at around noon on the day of the arrest, telling him to take one of the small packets of drugs from the nylon bags and to deliver it to someone in Whampoa.  At this time, ‘Tai Choi’ told the defendant that the drugs were ‘ice’.

16.  The defendant said this was the first time he had delivered drugs for ‘Tai Choi’.

17.  CCTV footages captured the defendant covering up the glass panels with tape, moving the nylon bags into the shop, and the defendant coming out of the shop with the plastic bag in hand before his interception by the Police.

18.  The estimated street value of all the seized drugs was $109,881,736.89.

19.  The defendant rented shop 81 for the period between 9 September 2021 and 8 September 2023 at a monthly rental of $10,500.

PREVIOUS CONVICTIONS

20.  The defendant is of previously clear record.

BACKGROUND AND MITIGATION

21.  The defendant was born in February 2000 and is now 24 years old.  The defendant was 21 at the time of the offences.  He was educated up to Form 6 level in Hong Kong.  The defendant’s father passed away when he was 16.  He is single and lives with his 67 year old mother and elder brother at a public housing unit in Tseung Kwan O.  His mother suffers from chronic illness and is unable to work.

22.  The defendant was the sole bread winner of the family.  He claims that he was in financial difficulty as a result of him taking out personal loans to help his brother, who was ‘in serious debt’.  Even when the defendant was a student, he had worked as part-time kitchen assistant, server assistant, helper and sanitation worker.  He, stupidly, fell into ‘the trap of earning easy and quick money.’

23.  It is Mr. Lo’s submission that given the young age of the defendant at the time, he ‘must have been dictated to by older and more sophisticated man in the world of crime’.  Yet, it is the ‘naïve/ignorant/exploited/youthful defendants who bear the consequences and face the full vigour of the law’.

24.  The defendant wrote in mitigation about how he regrets the commission of the offences.  He is grateful to his mother for writing to let him know she loves him, and for her encouraging him to stand back up.  But for the support of his family and friends, he would not have been able to get through the days.  He knows he is facing a long prison term, but he will not give up.  He will engage in studies, learn useful skills and hope to be able to give back to society upon his release.

25.  In her letter, the defendant’s mother says the defendant has always been a good son and had been trying his best to look after her and the family.

26.  The defendant’s fellow volunteers, and fellow member of St John’s Ambulance Cadet and friends, wrote to talk about how the defendant is a loving and responsible person, always respectful to elderly people and eager to take part in social service activities.  They are confident that the defendant will be able to rejoin and contribute to society upon serving his sentence.

SENTENCE

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

28.  Given that the drugs that the defendant trafficked were found in close temporal and spatial proximity, I will regard the two offences as representing one occasion of possession of the total amount of drugs[1], and sentence the defendant accordingly.  I will adopt a global nominal starting point based on the combined quantity of ketamine, and then arrange for the individual sentences to be served so that the combined sentence can be achieved.

APPLYING HERRY JANE YUSUPH

29.  I applied the guidelines and 6-step approach as set out by the Court of Appeal in HKSAR v Herry Jane Yusuph[2] in sentencing.

Step 1: The applicable guideline tariff bands

30.  The guideline tariffs for ketamine is laid down in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, where for over 1 kg of ketamine, the tariff band is 14 years and upwards.

31.  In the case of HKSAR v Sin Chung Kin and another [2013] 1 HKLRD 627, CACC 458/2011, the Court of Appeal considered the situation involving larger quantity of ketamine and stated that “if more than 3,000 g of ketamine is involved, the starting point can exceed 20 years, although the increase in sentence should not be proportional to the increase in the drug quantity.  The court should exercise its discretion to pass a sentence appropriate in the circumstances of the particular case.”

32.  The Court also said that, “Although it is not possible to enhance the starting point proportionally, a reasonable and logical approach must be that the larger the quantity of the drugs is, the more severe the sentence will be.”

33.  A differently constituted Court of Appeal confirmed the above approach and tariff in HKSAR v Chow Yau Ching [2014] 2 HKLRD 639.

34.  Therefore, for the 2.07g of ketamine in count 1, the applicable guideline tariff band is that of 2 to 4 years’ imprisonment.  For the 170.38 kg of ketamine in count 2, the applicable guideline tariff band is that of 20 years upwards.

35.  For the combined quantity of 172.45 kg, the applicable band is also 20 years upwards.

Step 2: The defendant’s role and culpability

36.  The defendant’s role was clearly a storekeeper.  Although he was on his way to make a delivery when he was intercepted, and the quantity he had with him would be something that might be delivered to a consumer, given the large quantity of drugs involved, any enhancement against him being a direct trafficker will be insignificant when compared to the final sentence, and I find that I can exercise my discretion and not enhance his sentence for count 1 on this basis.  He will be sentenced as a storekeeper, and the arithmetical approach to the guideline tariff will be adopted.

Step 3: The relevant band within the guidelines

37.  I now proceed to consider some sentencing cases involving large quantity of dangerous drugs in order to assist me to arrive at a global starting point for the combined quantity of ketamine.

38.  In the case of The Queen v Ng Muk Kam CACC 685/1993, the applicant trafficked in about 306 kg of salts of esters of morphine, which the Court of Appeal in HKSAR v Lee Ming Ho [2024] HKCA 150, CACC 130/2019 classified as a ‘heroine narcotic’, by way of assisting in their removal from a sampan to a car driven by the applicant on shore.

39.  The Court in Ng Muk Kam found that the applicant was not an offender in the most serious category since he was not the mastermind or the chief financier, but found that he was involved in a major way in the handling of the dangerous drugs.

40.  The sentencing judge was told that it was the “fifth largest seizure to that time in the world”.  The wholesale value of the drugs was about $46 million, with a street value of about $146 million.  Power VP observed that this kind of money “represented many life times of honest earnings and many more life times of misery and despair for addicts and their families.”

41.  The Court of Appeal, however, found that the sentence of life imprisonment imposed by the trial judge was not a proper one, and substituted it with a sentence of 35 years’ imprisonment.

42.  In the Court of First Instance case of HKSAR v Wong Ka Ho & Another [2021] HKCFI 494, Anthea Pang J (as she then was)  sentenced two defendants who trafficked in 63 kg of ketamine and 17 kg of cocaine (charges 1 and 2 respectively).

43.  She applied the Herry Jane Yusuph sentencing guidelines, found the defendants to be storekeepers, and adopted a starting point of 23 years for the ketamine charge, and 30 years for the cocaine charge.  Despite both the defendants having been sentenced to quite significant terms of imprisonment for trafficking in dangerous drugs before, and had committed the offences not long after their release from prison, the learned judge exercised her discretion to not enhance their sentences in view of the very lengthy term which they were facing.

44.  In A Pang J’s sentencing, she referred to the case of HKSAR v Yeung Kwok Ming （楊國明）and another, CACC 224/2007.  There the applicants were caught red-handed when they were moving suitcases filled with about 42.69 kg of ketamine out of a unit.  They were brought back to the unit and another 426.04 kg of ketamine were found.  They pleaded guilty to trafficking in the 42.69 kg in the suitcases (count 1), but not guilty to the 426.04 kg in the unit (count 2).

45.  They were both found guilty after trial, and the trial judge adopted a starting point of 30 years for the 426.04 kg of ketamine, on the basis of them having played a lesser role than the “brains or financiers”.  The starting point for the 42.69 kg in count 1 was 21 years.

46.  The Court of Appeal found, first of all, that a clear record was of little relevance in a case of such gravity.

47.  They found that the applicable sentencing guidelines when the offences were committed in 2006 were those in HKSAR v Lee Tak Kwan [1998] 2 HKLRD 46, which provided that for 800g of ecstasy (which also applied to ketamine)  and over, a sentence of 8 years and upwards would be appropriate.

48.  The Court then referred to the case of HKSAR v Suen Yung Yung (aka Yuyun Sunjaya)  and another CACC 509/2001, where a starting point of 20 years for one count of conspiracy to traffic in 9.75 kg of ecstasy adopted by the trial judge was not disturbed by the Court of Appeal.

49.  The Court in Yeung Kwok Ming remarked that the quantity of ketamine was far more substantial than that in Suen Yung Yung, and that the street values of the 2 counts were $8.5 million and $95 million respectively.

50.  In upholding the sentences, they noted that the applicants were both in their 50s and that the imposed sentences would mean that they will be released from prison as old men, but stated that,

“28…However, that was the risk they took when they dealt with these large quantities of ketamine. The evil that this drug does to users has been proven. We did not consider these sentences as manifestly excessive nor did we see any error on the part of the judge in passing those sentences.”

51.  Another case that Anthea Pang J referred to in her sentence is HKSAR v So Wing On CACC 296/2012.  The applied guidelines were also those in HKSAR v Lee Tak Kwan [1998] 2 HKLRD 46, where for over 800g, the sentence should be 8 years and upwards.

52.  With the applicant’s fingerprints and palm print found on the packaging paraphernalia, and him being a forerunner in the trafficking and delivering drugs on instructions, the Court of Appeal found that the applicant’s “active and pivotal role” called for a higher sentence.  They did not consider the starting point of 21 years for the 21.31 kg of ketamine to be manifestly excessive.

53.  One other case that A Pang J referred to in her sentence is HKSAR v Wong Kam Chuen, CACC 75/2012.  There the applicant pleaded guilty to trafficking in 39.73 kg of ketamine, which were found inside the container truck that he was driving and about to leave Hong Kong for the mainland via Lok Ma Chau.

54.  At the time of sentencing, the drugs had a street value of $19 million and the trafficking involved a cross-border element.  The learned DHCJ Derek Pang (as he then was)  adopted a 22 years starting point.

55.  The applicant compared the sentences in other cases and submitted that his was too severe.

56.  The Court found that the sentence was not manifestly excessive.  They referred specifically to the above case of Yeung Kwok Ming and observed that, although the trial judge there adopted a starting point of 21 years for the 42.69 kg of ketamine in charge 1, which is lighter than the applicant’s sentence, Yeung Kwok Ming did not involve a cross-border factor, and also, the applicants were sentenced to 30 years for charge 2, ordered to be served concurrently, rendering the sentence for charge 1 immaterial.  The application to appeal out of time in Wong Kam Chuen was dismissed.

57.  In the present case, the defendant was a very involved storekeeper.  He was the person who rented the shop, he applied tapes to cover up the shop from outside view, placed a can of paint for disguise, went to meet up with someone to have the drugs brought to the shop, transferred all the drugs from the vehicle to the shop, all for the agreed reward of $20,000 per month.  He was also tasked with making deliveries, and had all along been receiving instructions from at least two other people.

58.  Based on my finding of the defendant’s role and culpability as a storekeeper, having considered all the above referred to cases, and bearing in mind that the sentence must reflect the huge quantity of ketamine involved, but at the same time be reasonable, I will adopt a global starting point of 30 years’ imprisonment for the combined quantity of drugs.

Step 4: Aggravating factors

59.  There are no aggravating factors that would require me to enhance the sentences in count 1 or 2.

Step 5: Mitigating factors

60.  Mr. Lo talked about how the defendant was young and naïve, ignorant and being exploited in mitigation, and submitted that these are mitigating factors in his case.  I disagree.

61.  First of all, the age of the defendant, both at the time of the commission of the offences and the time of his sentence, do not fall into the category of extreme youth and would not normally be regarded as a mitigating factor in a crime as serious as the present one.

62.  The defendant was about 21 years old and educated up to Form 6 level in Hong Kong.  He had worked various part-time jobs.  He was not someone who had always been shielded from the realities of life.  He agreed to do what the others told him to do for $20,000 a month, an ongoing reward.  He knew full well what he was getting himself into.

63.  Similar to the applicant in Yeung Kwok Ming, the defendant had chosen to take the risk of a very lengthy term of imprisonment when he agreed to set up the store and became the storekeeper to such a huge quantity of drugs, which he was told was ‘ice’, a narcotic more potent that ketamine.  One can only imagine the harm to society this quantity of drugs would be causing should they be allowed to be distributed.  The defendant must bear the full consequences of his action.

64.  Therefore, apart from his timely pleas of guilty, there are no mitigating factors that would justify a reduction in sentence.

Step 6: Totality

65.  Just as in another case that Mr. Lo had before me today[3], he had invited this court to grant a reduction in sentence when taking the sixth step of Herry Jane Yusuph on the basis that this case ‘cries out for a merciful sentence’ in his initial written mitigation.

66.  Since I had drawn Mr. Lo’s attention to the case of HKSAR v Lee Ming Ho [2024] HKCA 150; CACC 130/2019, where the Court of Appeal clarified the proper application of Step 6 of Herry Jane Yusuph, Mr. Lo had, very fairly, withdrawn this mitigation.

67.  Taking a step back, despite the fact that the eventual sentence will very likely have a crushing effect on the defendant, I find that a global notional starting point of 30 year’s imprisonment for the combined quantity of drugs in the circumstances is a fair, just and balanced sentence.

FINAL SENTENCE

68.  The global sentence after granting the defendant the full one-third discount for his timely guilty plea would, therefore, be 20 years’ imprisonment.

69.  To achieve this sentence, I will adopt a starting point of 2 years 3 months for the 2.07g of ketamine in count 1, discounted to 18 months upon his guilty plea.

70.  I will adopt a starting point of 30 years for the 170.38 kg of ketamine in count 2, discounted to 20 years’ imprisonment upon his guilty plea.

71.  I order that the sentences in both counts be served concurrently, resulting in the final sentence of 20 years’ imprisonment for the two counts.