HKSAR v. LAI CHI UNG

HCCC 201/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 201 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 has been convicted on his own plea on two charges of trafficking in a dangerous drug (Count 1 and Count 3 on the Indictment).

The Particulars of Offence for Count 1 provide that on 11 December 2013, at Pak Tin Street, Shek Kip Mei, Kowloon in Hong Kong, the defendant unlawfully trafficked in a dangerous drug, namely 3.84 kilogrammes of a powder containing 3.15 kilogrammes of ketamine.

The Particulars of Offence for Count 3 provide that on 12 December 2013, at Flat F, 11th Floor, Happy Building, No 201 Pei Ho Street, Sham Shui Po, Kowloon in Hong Kong, the defendant unlawfully trafficked in a dangerous drug, namely 0.43 kilogramme of a powder containing 0.26 kilogramme of ketamine.

The Summary of Facts admitted by the defendant provides that on 11 December 2013 at around 22:50 hours, Customs officers conducted an anti-dangerous drugs operation and intercepted the defendant when he was carrying a red recycle bag (the “red recycle bag”) at Pak Tin Street in Sham Shui Po. When the Customs officers revealed their identity, the defendant immediately threw the red recycle bag onto the roadside and ran away. The defendant was then intercepted by the Customs officers.

The red recycle bag was then seized and found to contain four black plastic bags. These four black plastic bags contained 16 plastic packets of white-coloured powder, which was later confirmed by the Government Chemist to be a total of 3.83 kilogrammes of powder containing 3.15 kilogrammes of ketamine (ie Count 1).

The defendant was immediately arrested and cautioned. Under caution, the defendant admitted that:

(1) the white-coloured powder contained in the 16 plastic packets in the red recycling bag was “K Chai” (ie ketamine); and

(2) the defendant collected them for people in return for a remuneration of HK$1,000.

In addition, two keys were seized from the defendant. The said keys were later confirmed to be the door keys of the defendant’s residence and bedroom.

On 12 December 2013 at around 0020 hours, a home search was conducted at the defendant’s residence at Pei Ho Street, Sham Shui Po, Kowloon. A bag (the “Bag”) was seized from a drawer under a bed in the defendant’s bedroom. The Bag was later confirmed by the Government Chemist to contain 0.43 kilogramme of white-coloured powder containing 0.26 kilogramme of ketamine (ie Count 3). An electronic scale, a bundle of unused plastic bags and a bag of sugar were also seized from the said bedroom.

The defendant was again immediately cautioned. Under caution, the defendant admitted that:

(1) The white-coloured powder in the bag was “K Chai” (ie ketamine); and

(2) The defendant intended to repack the white-coloured powder in the bag into smaller packets for resale to people for HK$100 per packet.

On the same day from about 1217 hours to 1254 hours, the defendant participated in a video-recorded interview. Under caution, the defendant admitted, inter alia, that:

(1) The defendant lived at Flat F, 11th Floor, Happy Building, No 201 Pei Hoi Street, Sham Shui Po, Kowloon, with his parents and his younger brother. His family had no knowledge about the drugs in his bedroom and they had no key to enter his bedroom.

(2) The defendant was unemployed and earned his living by trafficking in ketamine. His monthly income for trafficking ketamine is about HK$20,000 to HK$30,000.

(3) Regarding the drug seized from the red recycling bag (ie Count 1), on 11 December 2013, the defendant was instructed by his boss “Kai Chai” to wait at Pak Tin Estate, Sham Shui Po, to collect dangerous drugs from a male. The defendant boarded a private car and collected the red recycle bag from a male inside the private car. The defendant knew that the red recycle bag contained about 4 kilogrammes of ketamine. The defendant planned to take the red recycle bag to his residence and to keep it there until he would deliver the ketamine in the red recycle bag to another person on the following day. The defendant would receive HK$1,000 upon the delivery.

(4) Regarding the drug seized from the Bag (ie Count 3), the Bag belonged to the defendant. “Kai Chai” gave the Bag to the defendant. The defendant knew that the Bag contained ketamine.

(5) The defendant intended to repack the ketamine in the Bag into smaller packets for resale. The defendant would use the electronic scale to weigh the ketamine, and mix the ketamine together with sugar. Each small packet would contain 1 gramme of ketamine and the defendant intended to sell each small packet for HK$100.

In December 2013, the average street value for ketamine was about HK$120 per gramme. If 3.41 kilogrammes of ketamine had been sold on the streets of Hong Kong, then this quantity could have a value of about HK$409,200.

By way of personal background, the defendant is 25 years of age. He was born in Hong Kong in May 1990. At the time of arrest, he lived with his parents and one younger brother. At the time of the arrest, the defendant was unemployed. He had received education up to lower secondary school level.

The defendant has one previous conviction of possession of dangerous drug. That was in December 2007, and for which the defendant was put on probation for 18 months.

By way of mitigation, Mr Andrew Raffell submitted on behalf of the defendant that he is remorseful, and that he has pleaded guilty at an early stage. Mr Raffell asked for the full one-third discount for his guilty plea.

Mr Raffell also submitted that the defendant has been cooperative with the authorities by giving two non-prejudicial statements. Unfortunately, the assistance has not been fruitful.

Dealing first with the sentence on Count 1, the narcotic involved under this count is 3.84 kilogrammes of a powder containing 3.15 kilogrammes of ketamine.

The quantity of ketamine involved in Count 1 is indeed substantial; in fact, way beyond the upper-most band of 1,000 grammes in the case of Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, which sets out the tariffs for trafficking in ketamine. In the Hii Siew Cheng case, the Court of Appeal held that for trafficking in over 1,000 grammes of ketamine, the proper sentence after trial should be 14 years upwards.

In HKSAR v Sin Chung Kin [2013] 1 HKLRD 627, the Court of Appeal, having considered the rate of enhancement of starting points for trafficking in large quantities of other dangerous drugs (such as heroin and ‘Ice’), made the observation that the appropriate starting points for trafficking in 2,000 grammes and 3,000 grammes of ketamine should, respectively, be no less than 18 years and 20 years.

In the Sin Chung Kin case, the narcotics involved were 5.12 kilogrammes of ketamine and 18.8 grammes of cocaine. The Court of Appeal approved of the overall starting point of 22 years, noting that the starting point for trafficking in 18.8 grammes of cocaine alone could be as long as 6 years.

The analysis in the Sin Chung Kin case was reaffirmed by the Court of Appeal in HKSAR v Chow Yau Ching [2014] 2 HKLRD 639. At paragraphs 17 and 18 of its Judgement, the Court of Appeal expressly endorsed the view that when heroin traffickers were to be sentenced:

“there should be a meaningful distinction between the sentence for trafficking in only 600 grammes of heroin and that for trafficking in twice that quantity...”.

The Court of Appeal made the point that the principles set out in the above quoted passage are applicable to trafficking in large quantities of any dangerous drugs, including ketamine.

In the Chow Yau Ching case, the Court of Appeal approved a starting point of 19 years and 9 months for trafficking in 2.89 kilogrammes of ketamine.

In the present case, the quantity of narcotic trafficked under Count 1 is 3.84 kilogrammes of a powder containing 3.15 kilogrammes of ketamine. Following the guidance given by the Court of Appeal in the authorities cited above, in my view, the appropriate starting point for sentence on Count 1 should be 20 years and 1 month’s imprisonment.

I will give the defendant the full one-third discount for his guilty plea.

The defendant is accordingly sentenced to 13 years and 4 months’ imprisonment on Count 1.

As regard Count 3, the narcotic involved is 0.43 kilogramme of powder containing 0.26 kilogramme of ketamine.

In the Hii Siew Cheng case, Supra, the Court of Appeal held that the appropriate sentence after trial for trafficking in between 50 to 300 grammes of ketamine was 6 to 9 years’ imprisonment.

Following the Hii Siew Cheng case, in my view, the appropriate starting point for sentence on Count 3 should be 8 years and 6 months’ imprisonment.

I will again give the defendant the full one-third discount for his guilty plea.

The defendant is accordingly sentenced to 5 years and 8 months’ imprisonment on Count 3.

Finally, I have to give anxious consideration to the totality principal in order to arrive at a correct overall sentence.

This is a case where different quantities of narcotics were seized from the defendant in the course of an enforcement operation and separately charged. In such circumstances, by and large, I am prepared to sentence the defendant on the total quantity of the ketamine seized, rather than on the individual smaller quantities.

The total quantity of narcotics involved under the two counts is 4.27 kilogrammes of powder containing 3.41 kilogrammes of ketamine. For this total quantity of ketamine, in my view, the appropriate overall starting point would be 20 years and 4 months’ imprisonment, reduced to an overall sentence of 13 years and 6 months’ imprisonment after a one-third discount.

However, in the final analysis, I have to bear in mind also that in the present case, it is not just the totality of drugs in the defendant’s possession which goes to the overall criminality of the two offences in question, but also the separate acts of trafficking [see: HKSAR v Ng Yau Kau, CACC 374/2007 (Judgment of the Court of Appeal dated 18 June 2008)].

From the Summary of Facts admitted by the defendant, he was clearly acting as a courier of the drug the subject matter of Count 1. Whereas in respect of the drug the subject matter of Count 3, the defendant assumed the role of a retail supplier. Moreover, the drugs in the two counts were not part of a common stock in the defendant’s continuous possession.

Taking all the circumstances into consideration, in particular, having considered the totality principle, in my view, a correct overall sentence for the two offences of which the defendant has been convicted should be 13 years and 8 months’ imprisonment.

Defendant, can you stand up.

To achieve that result, the defendant is sentenced to 13 years and 4 months’ imprisonment on Count 1. The defendant is sentenced to 5 years and 8 months’ imprisonment on Count 3. 5 years and 4 months of the sentence on Count 3 is to run concurrently with the sentence on Count 1, with 4 months running consecutively.

This results in a total sentence of 13 years and 8 months’ imprisonment.