HKSAR v. Man Shing Kwan

HCCC 342/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 342 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, Mr Man Shing-kwan pleads guilty to two counts of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

The 1st count alleges that the defendant on 22 April 2014 outside Room 710, Yuet Wing House, Tin Yuet Estate, Tin Shui Wai, New Territories in Hong Kong, unlawfully trafficked in a dangerous drug, namely 28.03 grammes of a solid containing 20.17 grammes of ketamine.

The particulars of the 2nd count are that the defendant on the same day at Room 509 of the same building named in the 1st count, unlawfully trafficked in a dangerous drug, namely 202.46 grammes of a solid containing 156.49 grammes of ketamine.

Facts admitted

On 22 April 2014 at about 2130 hours, when police officers stopped the defendant for a search near the lift lobby of the 7th floor of Yuet Wing House, Tin Yuet Estate, Tin Sau Road, Tin Shui Wai, New Territories, the defendant immediately fled but was stopped and subdued after a brief chase.

Inside the right-front pocket of the defendant’s shorts, police officers found 3 plastic bags containing 28.03 grammes of a solid containing 20.17 grammes of ketamine. On being arrested and cautioned for trafficking in a dangerous drug, the defendant said he had been unemployed for a year and was going to sell “K Chai” to somebody to earn some money. He asked the police officers for a chance.

With the permission and using the keys of the defendant, police officers searched his premises at Room 509 Yuet Wing House and found 5 plastic bags inside a purple paper bag on the computer desk in the defendant’s bedroom.

Inside the bags were, respectively, 202.46 grammes of a solid containing 156.49 grammes of ketamine, an electronic scale, a plastic spoon, 22 empty plastic bags and 6 empty plastic bags. Police officers also found $3,100 in cash in the premises.

Upon being arrested and cautioned for trafficking in a dangerous drug, the defendant said that the scale and small bags were used to separate and pack “K Chai”.

The total value of the ketamine seized, as of April 2014, was $27,198.

Criminal record

The defendant has 3 previous convictions, not similar to the present offences. He was last convicted of inducing a person to be a triad member on 8 January 2003 and was placed on probation for 18 months. The probation order was, however, discharged and the defendant was sent to the detention centre on 22 April 2003 when the defendant breached the order.

Mitigation

Counsel for the defendant makes a thorough mitigation on behalf of the defendant. The defendant is aged 28 and educated up to Form 3. After leaving school he had worked as a construction site worker for 2 to 3 years earning about $10,000 a month, and then a decoration worker also for 2 to 3 years earning over $10,000 per month.

His father died in July 2013. As a result of that, the mother suffers from depression and mental illness. The defendant quitted his job to look after his mother hoping to help her recover.

The defence counsel points out that part of the dangerous drugs was for the consumption of the defendant and asks the court to give him a discount in sentence for that. When the court indicates that with the materials before the court the court does not accept such mitigation, the defence counsel says that the defendant will not take the matter any further.

The defence counsel submits to the court mitigation letters of the defendant and her mother who is in court to support the defendant. In the letter, the defendant says that during the detention of 14 months of this case, he has made deep reflection on his wrongdoing. He says that he foolishly committed the present offences because of the economic strain occasioned by the death of his father.

He is determined to turn a new leaf and not to offend the law again. He is confident that with the improvement in the relationship between himself and his family and the support of his family he will succeed in doing so.

The mother expresses regret in the letter for the offences committed by the defendant. She says that she suffered a nervous breakdown after the death of the defendant’s father and had once had the idea to commit suicide. She was only able to overcome the problem with the help of the defendant. She emphasises that the defendant has learned a bitter lesson and has displayed positive changes after the present case. She is confident that the defendant is determined to amend his way of life.

The defendant and the mother ask for the mercy of the court. The defence counsel also asks the court to be lenient to the defendant.

Sentence

The Court of Appeal laid down sentencing guidelines of trafficking in ketamine in the case of Secretary for Justice v Hii Siew Cheng [2008] 3 HKC 323. For a quantity of 10 to 15 grammes of ketamine the starting point is 4 to 6 years imprisonment; and that for 50 to 300 grammes of ketamine, 6 to 9 years imprisonment.

The amount of ketamine in Charge 1 and Charge 2 are, respectively, 20.17 grammes, and 156.49 grammes. The starting points are, therefore, approximately 4 years and 6 months imprisonment, and 7 years and 3 months imprisonment respectively.

The defendant committed the offences for economic reasons. This, of course, is not an excuse to offend the law and can never constitute a valid mitigating factor.

The court sees no reason not to follow the sentencing guidelines, thus adopting these imprisonment terms as the starting point for the two charges.

Giving credit to the defendant for his plea of guilty, the court sentences him to 3 years imprisonment for Charge 1; and 4 years 10 months imprisonment for Charge 2.

The total quantity of the ketamine in the 2 charges are 176.66 grammes which brings about a starting point of approximately 7 years and 6 months imprisonment. On a guilty plea that will become 5 years imprisonment.

In all fairness to the defendant, the total sentence he is to receive in this case should not exceed that which he should if he had trafficked all the ketamine together.

Having considered this factor, the nature of the case and the totality principle, the court orders 2 months of the sentence of Charge 1 to run consecutively to that of Charge 2.

The defendant is to go to prison for a total of 5 years.