HKSAR v. Cheng Hung Fei

HCCC 266/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 266 OF 2015

-----------------

------------------

---------------------------------

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

---------------------------------

COURT: The defendant has been convicted on his own plea on one charge of trafficking in a dangerous drug. The guilty plea was entered at the earliest opportunity at the Eastern Magistrates’ Court on 26 June 2015.

The Particulars of Offence provide that on 11 February 2015, at No. 516 Shanghai Street, Mong Kok, Kowloon, in Hong Kong, the defendant unlawfully trafficked in a dangerous drug, namely 1.96 kilogrammes of a powder containing 1.48 kilogrammes of ketamine.

The Summary of Facts admitted by the defendant provides that on 11 February 2015 at around 3.53 pm, police officers who were conducting an anti-dangerous drug operation intercepted the defendant at 516 Shanghai Street, Mong Kok, Kowloon.

A search of the plastic bag which the defendant was carrying produced a shoebox containing two tealeaf bags containing a total of eight packets of suspected dangerous drugs.

The defendant was arrested. Under caution he said:

“Ah Sir, I delivered “K Chai” for others to earn money only because I did not have work to do.”

The suspected dangerous drugs were confirmed to be a total of 1.94 kilogrammes of a powder containing 1.48 kilogrammes of ketamine.

In his video-recorded interview, the defendant said under caution, inter alia, that:

(1) He became acquainted with a male called Ah Man. The defendant, who was unemployed, told Ah Man that he needed money.

(2) Ah Man asked the defendant to deliver ketamine and promised the defendant a monetary reward. The defendantagreed.

(3) On the offence date, the defendant collected a plastic bag which was placed near a car parked outside a factory in Tsuen Wan. The defendant later opened this plastic bag and found a shoebox containing two tealeaf bags. Inside these two tealeaf bags were packets of “K Chai”.

(4) The defendant had been promised a reward of HK$500 for delivering each packet of “K Chai”. He had not received his monetary reward.

(5) The black coloured Samsung mobile phoneseized from the defendant had been given to him by Ah Man for communication.

(6) The other two mobile phones seized from the defendant belonged to the defendant and were for his own use.

(7) The cash (HK$5,410 and RMB700) seized from the defendant was savings from his previous employment.

In February 2015, the seized dangerous drug had an estimated value of HK$232,800.

In the Summary of Facts the defendant further expressly admitted and accepted that he was trafficking in all the dangerous drug seized in this case.

By way of personal background, the defendant is 41 years of age. He was born in China in August 1974. He received education up to From 3 level in Hong Kong. After completing his schooling, the defendant had worked in various restaurants as a cook. The defendant became unemployed since January 2015.

The defendant is married but separated from his wife. Prior to his arrest he resided with his parents, who are both 60 years old. Prior to his arrest, the defendant’s parents were financially dependent on him.

The defendant has one previous conviction for trafficking in a dangerous drug. For that offence, he was sentenced to 25 months’ imprisonment on 7 June 2006.

By way of mitigation, Mr Tracy submitted on behalf of the defendant that he is deeply sorry and remorseful for having committed the present offence. This is borne out by his guilty plea at the earliest opportunity.

Mr Tracy submitted to the court a very detailed and helpful note which sets out the defendant’s personal history, including his unfortunate addiction to ketamine since around 1998.

There is also a mitigation letter from the defendant himself. However, as has been pointed out by the courts on many previous occasions, the personal and family circumstances of the defendant will offer little mitigation in a drug trafficking offence of such a serious nature.

The defendant has been convicted on one charge of trafficking in a dangerous drug, namely 1.94 kilogrammes of a powder containing 1.48 kilogrammes of ketamine.

The quantity of ketamine involved in this case is substantial, in fact someway beyond the uppermost 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.

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 Judgment, 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. 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 further held 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 present case, the narcotic involved is 1.48 kilogrammes of ketamine. In my view, the appropriate starting point for sentence should be 15 years and 11 months’ imprisonment.

In coming to that view, I have taken into account that there should be a “meaningful distinction” between the 14‑year starting point indicated in the Hii Siew Cheng case for trafficking in 1,000 grammes of ketamine, and the narcotic involved in the present case (1.48 kilogrammes of ketamine).

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, can you please stand up.

The defendant is accordingly sentenced to 10 years and 7 months’ imprisonment.