HKSAR v. Tong Tin Yau

HCCC 179/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 179 OF 2015

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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 one

charge of trafficking in a dangerous drug.

The Particularsof Offence provide that on 17 September 2014, outside the “Taste” Supermarket, Shop 5, MTR Level, Festival Walk, No 80 Tat Chee Avenue, Kowloon, in Hong Kong, the defendant unlawfully trafficked in a dangerous drug, namely 3.42 kilogrammes of a solid containing 2.76 kilogrammes of ketamine.

The Summary of Facts admitted by the defendant provides that acting on information, at around 20:46 hours on 17 September 2014, outside the “Taste” Supermarket at Festival Walk, Kowloon City, police officers spotted the defendant and another male near some lockers at a corridor nearby. The defendant was observed pressing on some buttons, and a locker door opened. The other male walked forward to open the locker door. The defendant took out a rucksack in black colour from the locker and carried it. The defendant and the other male then walked out of the corridor.

At this juncture, the police tried to intercept them. The defendant threw the bag onto the ground and they tried to run away. The police checked the black rucksack dropped by the defendant and found 14 packets of a suspected dangerous drug (subsequently certified to contain a total of 3.42 kilogrammes of a solid containing 2.76 kilogrammes of ketamine).

After a short chase, the defendant was subdued. He was asked why he dropped the black rucksack, and he gave no reply. He was arrested for trafficking in a dangerous drug. Under caution, he said, “I am just in need of money so (I) received from someone $5,000 for delivering the KChai”.

Later, the police conducted a video-recorded interview with the defendant, in which he further stated, inter alia, the following under caution:

(1) He had not received the promised $5,000 yet;

(2) He appeared at Festival Walk because someone called him that day and asked him to go there to pick up a bag of “K Chai”;

(3) Accordingly, he arrived at Festival Walk at around 18:00 hours. Until about 20:00 hours, the male called him and told him the password of the locker;

(4) When the door of the locker open, he saw a rucksack inside and he picked it up; and

(5) He had not yet received any instructions as to whom should he deliver the rucksack to, and he intended to wait at the shopping mall for further instructions.

The street value (in September 2014) of the dangerous drug seized was HK$434,340.

By way of personal background, the defendant is 31 years of age. He was born in August 1984 in Hong Kong. He received education up to Secondary 3 level in Hong Kong. He had worked as a casual decoration worker with monthly income of around HK$10,000.

The father of the defendant had passed away in 2004. The defendant is married. He has no children. His wife works as a saleslady in a financial institution.

The defendant has a total of 14 previous convictions, four of which are drug-related, with one being trafficking in dangerous drugs. That trafficking offence occurred in 2007, for which the defendant was sentenced to 20 months’ imprisonment. On 15 November 2013, the defendant was sentenced to 3 months’ imprisonment, suspended for 12 months, for an offence of possession of a dangerous drug. Thus, the present offence was committed during the period of suspension.

By way of mitigation, Mr Chau Hing-pang submitted on behalf of the defendant that he is remorseful and full of regrets, as shown by the two mitigation letters written by the defendant and handed up to the court. But as Mr Chau realistically recognised, personal circumstances and financial difficulties of the defendant can have little bearing in a serious case of drug trafficking.

The defendant has been convicted on one charge of trafficking in a dangerous drug, namely 3.42 kilogrammes of a solid containing 2.76 kilogrammes of ketamine. The quantity of ketamine involved in this case is very substantial. In fact, way beyond the uppermost band of 1,000 grammes in the case of S for J 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 re-affirmed by the Court of Appeal in HKSAR v Chow Yau Ching [2014] 2 HKLRD 639. At paragraphs 17 and 18 of itsJudgment, the Court of Appeal expressly endorsed the view that:

“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. A distinction should also be drawn between the sentence where there were aggravating factors and the sentence where no aggravating factors were present.”

The Court of Appeal made the point that the principles contained 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 narcotic involved is 2.76 kilogrammes of ketamine. In my view, having regard to all the circumstances, and taking into account the authorities cited above, the appropriate starting point for sentence should be 19 years and 6 months’ imprisonment.

I shall give the defendant the full one-third discount for his guilty plea, which was tendered at the first opportunity at the Magistrates’ Court.

Defendant please stand up. The defendant is accordingly sentenced to 13 years’ imprisonment for the offence in the present case.

Further, the 3-month suspended sentence imposed in KT 4393/2013 is activated in full, which is to run consecutively to the sentence imposed in the present case. In all the circumstances of this case, I do not consider it unjust to so order. Thus, the total sentence the defendant has to serve is 13 years and 3 months’ imprisonment.