HKSAR v. Kok Ka Fai

HCCC 450/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 450 OF 2014

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: First and 2nd defendants, you both face separate charges of trafficking in a dangerous drug, each of you facing one count each.

First defendant, you pleaded guilty to the 1st count. You admitted that, on 5 March 2014, at Siu Hing Building in Temple Street, Yau Ma Tei, you unlawfully trafficked in 92.54 grammes of a powder containing 68.59 grammes of ketamine.

As for you, the 2nd defendant you pleaded guilty to the 2nd count. You admitted that on 5 March 2014, at a flat on the 2nd floor of Siu Hing Building, at Temple Street, Yau Ma Tei, you unlawfully trafficked in 265.75 grammes of a powder containing 176.73 grammes of ketamine.

On 5 March at about 3.45 pm, police officers intercepted the both of you as you walked out of Siu Hing Building. All of a sudden, 1st defendant you took out a white plastic bag from your trousers pocket and threw it onto the pavement. The bag was retrieved and inside the bag was found to contain a further 15 smaller plastic bags containing the drugs as mentioned in Count 1.

The estimated street value of the drugs was $10,920. Of these 15 bags, 10 bags were of smaller quantities containing 25.43 grammes of a powder containing 18.91 grammes of ketamine. There were five larger bags containing 67.11 grammes of a powder containing 49.68 grammes of ketamine.

At the scene, the 2nd defendant you were searched and keys to your home were found on your person. You were then brought up for a house search on the 2nd floor of Siu Hing Building. At the house, there were three bags of ketamine found and that was the amount as stated in Count 2. Also found was an electronic scale, a number of empty transparent plastic bags and some empty mobile phone cases. It is admitted by you 2nd defendant that the empty mobile phone cases were used to keep some of the drugs.

The estimated street value of the drugs found at the 2nd accused’s home was $31,359.

The 1st and 2nd defendants, you are represented by Mr Kelvin Lai and Mr Albert Luk respectively.

In respect to you, 1st accused, you are 25 years old and have studied up to form 5. You were unemployed at the date of your arrest and you had a long-term addiction to drugs. As a result of your addiction, you found it difficult to be gainfully employed. As you were unemployed and needed to fuel your addiction to drugs, you got involved in trafficking.

I am informed that you and the 2nd accused acted under the instructions of one Ah Siu Lung who had recruited you to traffic in drugs.

Mr Lai informs me that your reward for trafficking was to be given drugs for free. He has shown me a photograph of the drugs and how they were packaged. He says the 10 smaller packets were for your own consumption.

The prosecution, through Mr Lenny Cheng, has agreed that these 10 packets containing 18.91 grammes of ketamine in purity were for your own consumption. The remaining five larger bags of approximately 50 grammes of ketamine were for the purposes of trafficking.

You have two previous convictions, both related to dangerous drugs, being of possession of dangerous drugs, for which you received sentences of a Probation Order and a fine of $3,000.

I have also received three letters in support of your mitigation, that being from yourself, (1st accused,) your mother and previous employer. I can see from your letter, 1st accused, you are deeply remorseful for the commission of this offence and that you feel most unfilial to your mother in respect of the illness you now know she has. Your mother also pleads for your leniency and asks this court to give you a chance to turn anew. Your former employer speaks highly of you and has offered to rehire you after your release from prison.

Mr Lai has referred me to the case of HKSAR v Chow Chun Sang, CACC 135/2011. That case illustrates how a sentence should be passed upon defendants who have pleaded guilty for trafficking and of which part of the drugs were for their own consumption. At paragraph 19, the judgment given by Yeung VP states that:

“When all or part of the drugs are intended for a trafficker’s own consumption, the ensuing discount to sentence should, depending on circumstances, fall somewhere between 10 per cent and 25 per cent of the basic starting point.

In determining the extent of discount in a particular case, the court should have regard to factors including the total quantities of the drugs involved, the proportion of the drugs intended for self-use, the nature of the drugs, whether the drug trafficking was for financial gain, whether the trafficking was organised and premeditated, and the background and criminal record of the defendant.”

There is also another more recent case of HKSAR v Tsang Chung Keung, CACC 165/2014, where the Court of Appeal also considered many cases involving drug trafficking cases when all or part of the drugs were intended for the trafficker’s own consumption and the various percentages applied.

There is of course no tariff and each case depends on the facts. I take those two cases into account when sentencing the 1st defendant on the basis that the prosecution accept that 18.91 grammes of ketamine were for the 1st accused’s own consumption.

The guideline for sentencing in trafficking in ketamine isthe case of Secretary for Justice v Hii Siew Cheng. The quantity of drugs that the 1st accused was trafficking in was 68.59 grammes of ketamine. That falls within the forth category, that is between 50 and 300 grammes where a term of imprisonment of between 6 to 9 years’ starting point after trial would be appropriate.

The starting point I would have taken had the accused been convicted after trial would have been one of 6 years’ imprisonment.

First accused, the amount that you had for your own consumption would be about 27.5 per cent of the purity of 68.59 grammes. As a result, I would take approximately a discount of 12½ per cent from that starting point, so that would be a starting point of 63 months’ imprisonment.

Giving you the full one-third discount for your plea of guilty, that would result in a term of 42 months’ imprisonment, otherwise a sentence which is one of 3 years and 6 months’ imprisonment, which you shall so serve.

As for the 2nd accused, you are 32 years old and studied up to secondary 3. You were a casual construction site worker and at the time of commission of this offence, you were unemployed.

Mr Luk, your counsel, has also mentioned the same person as the 1st defendant’s as the one who recruited you to traffic in these dangerous drugs. He had offered you free accommodation at the Siu Hing Building and at the same time offered you free ketamine upon trafficking on his behalf. Due to your unemployment and your addiction, you committed the present offence.

You have also written a very heartfelt letter to the court, realising now the ill-effects of earning quick money by illegal means. You have learned a bitter experience from your remand, waiting for trial. You have assured me that you intend to turn a new leaf. Mr Luk recognises the strongest mitigating factor is your plea of guilty.

The amount of drugs that you were trafficking in was 176.73 grammes of ketamine. That again falls within the same bracket in Hii Siew Cheng, that is for sentencing for between 50 to 300 grammes, a sentence of between 6 to 9 years’ imprisonment as a starting point after trial is appropriate.

Defendant, for this amount of drugs, had you been convicted after trial, I would have imposed a sentence of 7 years and 6 months’ imprisonment. Giving you full credit for your plea of guilty, that term shall be reduced to one of 5 years’ imprisonment, which you shall so serve.