HKSAR v. Lee Hin Long, Owen

HCCC 27/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 27 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 of one charge of trafficking in a dangerous drug.

The Particulars of Offence provide that on 13 August 2014, outside Chelsea Court, 90-114 Yeung Uk Road, Tsuen Wan, New Territories, in Hong Kong, the defendant unlawfully trafficked in a dangerous drug, namely 4,939 grammes of a powder containing 4,203 grammes of ketamine.

The Summary of Facts admitted by the defendant provides that on 13 August 2014, the defendant and a female boarded a taxi after they came out from the Olympic City Shopping Centre in Tai Kok Tsui. At around 3:57 pm on the same day, the taxi reached Chelsea Court in Tsuen Wan. When the defendant and the female were about to alight from the taxi, they were intercepted.

A search of the white bag and the black bag that the defendant was carrying produced a total of 20 plastic bags of suspected dangerous drugs and some empty plastic bags.

The defendant was also found in possession of one mobile phone and cash in the sum of HK$4,569.

The suspected dangerous drugs were subsequent confirmed to be a total of 4,939 grammes of a powder containing 4,203 grammes of ketamine.

The defendant was arrested and cautioned, after which he said, “I receive $2,000 and deliver the “K” for someone. The girl has nothing to do with it.”

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

(1) On 12 August 2014, the defendantreceived a phone call from his friend Ah Ching who asked if the defendant would want to earn $2,000 by delivering the dangerous drug “Ke”.

(2) On 13 August 2014, Ah Ching called and asked the defendant again. The defendant eventually agreed.

(3) Ah Ching told the defendant to wait for a telephone call. The defendant later received a call instructing him to go to Tai Kok Tsui for collecting the drugs.

(4) The defendant went to Tai Kok Tsui with his girlfriend but had not told her about his drug trafficking activity. At around 3 pm, they arrived. An unknown male gave the defendant a black bag, which contained many bags of “Ke” and a white bag, which also contained some bags of “Ke”.

(5) The defendantreceived a call instructing him to deliver the white bag to Chelsea Court. After the delivery, the defendant would receive a reward of $2,000.

(6) He boarded a taxi with his girlfriend.

(7) While the defendant was in the taxi, he received a phone call from Ah Ching telling him that someone would call the defendant after he arrived at Chelsea Court.

(8) When the taxi arrived at Chelsea Court, the defendant and his girlfriend were intercepted.

(9) The mobile phone seized from the defendant had been used to communicate with Ah Ching.

(10) The cash, HK$4,569 seized from the defendant had been given to him by his family.

In August 2014, the seizeddangerous drug had an estimated retail value of HK$587,741.

In the Summary of Facts, the defendant expressly admitted that he was trafficking in the dangerous drug seized in this case.

By way of personal background, the defendant is 19 years of age. He was born in Hong Kong in May 1996. He received education up to secondary Form 4 level in Hong Kong. He left school in May 2012.

After leaving school, the defendant worked as a salesman and became unemployed in June 2014. The defendant’s father is a driver and the mother is a cashier.

The defendant has three previous criminal convictions, none of which is drug-related. The convictions were all recorded in June 2015. Thus, the defendant had a clear record at the time of the present offence.

By way of mitigation, Mr Egan helpfully submitted on behalf of the defendant a written note setting out succinctly the matters urged upon this court in mitigation.

Furthermore, mitigation letters from respectively the defendant, his parents, his younger sister and two of his former teachers have been submitted to this court. Their contents have been duly noted by this court.

I have no difficulty in accepting that this is, indeed, a most tragic case: for a young man from a good family background to have committed a drug trafficking offence of such a serious nature.

It is, indeed, heart-breaking to see that a young man in his prime is going to spend the best part of his life in prison. However, I must not lose sight of the fact that drug trafficking offences clearly call for severe deterrent sentences.

As has been stated by the courts on many previous occasions, personal and familycircumstances of the defendant, and the circumstances leading to an offence would count much less in drug trafficking cases than in others, because those offences demand, as a matter of public protection, deterrence as an overwhelming consideration.

The defendant has been convicted on one charge of trafficking in a dangerous drug, namely 4,939 grammes of a powder containing 4,203 grammes 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 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 was 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 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...”.

The Court of Appeal made the point that the principle contained in the above-quoted passage is 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 4,203 grammes 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 21 years’ imprisonment. In arriving at the appropriate starting point, I have taken into account the circumstances of the offence, the role played by the defendant and the quantity of ketamine involved.

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

Defendant, can you stand up, please.

The defendant is accordingly sentenced to 14 years’ imprisonment.