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HCCC 14/2015
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CRIMINAL CASE NO 14 OF 2015
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| Before: |
Deputy High Court Judge S D’Almada Remedios |
| Date: |
9 March 2015 at 4pm |
| Present: |
Ms Rosaline Leung, SADPP(Ag), of the Department of
Justice, for HKSAR |
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Ms Emily Cheung Sau-kwan, instructed by Solomon C
Chong & Co, assigned by the Director of Legal
Aid, for the accused |
| Offence: |
Trafficking in a dangerous drug(販運危險藥物) |
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Transcript of the Audio Recording
of the Sentence in the above Case
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COURT: Defendant, you have pleaded guilty to two charges of
trafficking in a dangerous drug. Both offences were committed on
26 August 2014.
On the 1st charge, you had unlawfully trafficked in 67.1 grammes of a powder containing 32.2 grammes of ketamine. That offence occurred at Lok Fu in Wong Tai Sin.
The 2nd charge related to 593 grammes of a powder containing 274 grammes of ketamine. That offence occurred at a flat you resided in at Yen King Mansion, To Kwa Wan.
On the day in question at about 8.20 pm, police officers were on anti-drugs patrol at Lok Fu. They spotted you acting suspiciously inside McDonald’s at the Lok Fu Plaza. When you were intercepted, the drugs as quantified in Charge 1 were found in five packets inside a bag you were holding. Upon arrest and under caution you told the officers that you were just delivering “K-Chai” from home for someone to earn a little bit of money.
In respect of the 2nd charge, it was at the police station you confessed that you had further drugs hidden at your home at Yen King Mansion. You were then taken back to your house for a house search and the drugs in Charge 2 were found in 29 bags, together with an electronic scale and a number of small transparent resealable bags.
Under arrest and caution, you told the police officers, “The K-Chai here was given to me by the same person. I kept them at home first. I just wanted to earn a little money.” The total amount of drugs seized in purity was 306.20 grams of ketamine, which had an estimated retail value of $78,552.
It was admitted by Ms Rosaline Leung for the prosecution that the drugs found in your premises in Charge 2 would not have come to light you not told the police about them. You were at that time renting these premises on your own but in fact your family lived at another address.
At the time of arrest defendant you were 17 years of age. What Ms Leung is telling the court is that the police officers would have assumed that you, defendant were living with your parents at a separate address, and not at this address stated in Charge 2. It is in any event not in dispute on the facts that you had confessed to an offence of which the police were not aware, that is they were not aware of any drugs your premises in Yen King Mansion.
Defendant very thorough and full mitigation has been made by Ms Emily Cheung, your counsel. I have taken into account all that she has had to say on your behalf. Defendant you are now 18 years of age and have a clear record.
In mitigation I have had put forward to me numerous letters written by you the defendant, your father, your sisters, pastors, LegCo and District Council members, your previous headmaster and teachers and the like. I have also had submitted to me various photographs of you doing various street dance performances. It appears to me defendant you have very, very strong family support, and the family have also taken a lot of time and spend a lot of effort to help you certainly since the day of your arrest.
The defendant you left home some four months before the present offence as you were was having arguments you’re yourfamily you were working at a nightclub. To avoid these conflicts you moved out and commenced living with your boyfriend. During this time you worked and attended a nursery teacher education programme and obtained a diploma. You were also a dance teacher at a studio in Tuen Mun. You had quit schooling in form 5 as a result of some stomach ailment. It appears at the time of your arrest you were earning some $20,000-odd.
Moving out on your own, you realised the high cost of living, and particularly found it difficult to maintain the costs of your street dance performances. You frankly admitted that out of greed for quick money you committed these offences. You have reflected on this as a huge mistake made in your life. You said that since you have been incarcerated since the date of the offence you have grown up and understand the support that your family have given to you and continue to give to her. It appears now you have the determination to continue your studies and finish your high school studies as well as get into the life you love most, that is to teach dance and to help young children. It is a shame to see that a woman who was earning very well for an 18-year-old, $20,000 a month, and who was doing particularly well with her life committed this very, very serious offence.
As your counsel has pointed out there are tariff guidelines laid down by the Court of Appeal in trafficking in this type of drugs. The appropriate case is that ofSecretary for Justice v Hii Siew Cheng.
The total amount of drugs that you had for trafficking was 306 grammes of ketamine. That is the global amount to which I shall take in sentencing you. That falls into the fifth category of Hii Siew Chengwhich is an amount of between 300 to 600 grammes and a sentence of between 9 to 12 years’ imprisonment. Taking a starting point of 9 years imprisonment, giving you full credit for your plea of guilty, that sentence would be reduced to one of six years’ imprisonment.
As I mentioned earlier you had assisted the police. You had confessed to an offence of which they were not aware. In those circumstances I consider a further discount is warranted. Ms Cheung and Ms Leung had submitted to me various cases, but the main case is one of the HKSAR v Ma Ming, which discusses all these cases submitted, that is [2013] 1 HKLRD 813. At paragraph 17 of that case, the Court of Appeal held that,
“In these cases the defendant’s frankly disclosed the details of the commission of certain crimes and made a clean breast of their guilt. Had they not done so, the prosecution had no evidence against them at all. As a result, after they pleaded guilty they were given a discount of more than one third. There was no hard and fast rule as to the extent to which the further discount should be made, but it was not more than several months.”
The Court of Appeal went on to discuss: R v Ellis (1986) 6 NSWLR 603; HKSAR v Hui Chi Tong; and HKSAR v Tsang Kai On. And the Court of Appeal said at paragraph 21:
“In the above cases the court did not indicate by how much more the sentence should be reduced when giving this further discount. In R v Ellis, the Supreme Court of New South Wales remarked that ‘the degree of which will vary according to the degree of likelihood of that guilt being discovered by the law enforcement authorities, as well as guilt being established against the person concerned.”
At paragraph 22, the court said:
“However, from a practical point of view, it is surely no easy matter to decide in individual cases how much the further discount should be accorded to the above‑mentioned criteria.”
In Hui Chi Tong, I have calculated the percentage amount with Ms Leung and Ms Cheung, and as agreed the court gave a full discount of 37.5 per cent. I accept there is no amount as to the further discount laid down by the court.
In this case, the defendant had informed the police about a very large quantity of drugs in her flat. Had it not been as a result of her confession they would not have been aware or known of this. That amount of drug amounts to approximately 90 per cent of the drugs in these two charges. It was certainly in the public interest that she disclosed those other drugs which were in her possession. It is important for the court to give a further discount to have regard to the applicant’s confession to the offence and to encourage people in those positions to do the same.
As Suffiad J said in HKSAR v Ng Wing Chun 2005 HKCU 1740:
“Whilst that difficulty in identifying the applicant from the CCTV images came about because the applicant of his own doing chose to wear a surgical mask in perpetrating these offences, we take the view that some credit must be given to him for his confessions made to the police after his arrest but for which these offences would not have been brought home to him.”
In those circumstances, I consider a discount of 40 per cent on the drugs found in Charge 2 to be appropriate, inclusive of her one-third discount. It is to be noted that for the drugs in Charge 1, the usual one-third discount is only applicable. What will therefore do is arrive at a sum, which is to apportion that fairly amongst the total amount of drugs, as I mentioned 90 per cent of the drugs was from her confession.
Taken into account all these matters I consider a sentence after plea for the total amount of drugs to be one which should be five years and six months’ imprisonment. That is the sentence you shall serve. I must, however, now give you the individual sentences for Charge 1 and Charge 2.
On Charge 1, I would have taken a starting point of five years’ imprisonment had you been convicted after trial. Giving you full credit for your plea of guilty a discount of one-third should be applicable and you will be sentenced to three years and four months’ imprisonment on Charge 1.
On Charge 2, had you been convicted after trial I would have taken a sentence of eight years and six months’ imprisonment. Giving you the 40 per cent discount on that charge, that sentence should be reduced to five years and two months’ imprisonment.
To reflect and to result in the total sentence of five years six months, I shall order four months in Charge 1 to run consecutive to that of Charge 2 and the remainder of the sentence to run concurrent, which will make five years and six months’ imprisonment.
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