HKSAR v. Lee Kwok Hung

HCCC 334/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 334 OF 2015

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

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COURT: The defendantpleaded guilty before a magistrate of one charge of trafficking in a dangerous drug, and one charge of possession of a dangerous drug and was committed to the Court of First Instance for sentence.

In sentencing, I have considered the whole circumstances of the case, including its nature and facts, in particular the type and quantity of the dangerous drug involved, background of the defendant and mitigation put forward on his behalf.

The facts of the case are simple. On 28 November 2014, the defendant was found at the driver’s seat inside a car parked at an open car park in Sha Kong Wai Village. Found on the floor of the front passenger’s seat was an opened carton box containing 19 tinfoil bags of ketamine which is a subject matter of Charge 1.

Under caution the defendant said it was “K Chai” which he was to deliver so that he would get several thousands of dollars. In the storage box of a car a small packet of ketamine was also found. This is the subject matter of Charge 2.

It was told that the defendant is 39 years of age. He has received secondary education and had worked as a lorry driver and a car salesman. He is married and has a 5‑year‑old son. He does not have a clear record. His only conviction was recorded in 2007 for an offence of dealing with dutiable goods. He was fined. He has never been convicted of any drug-related offence.

Learned counsel for the defence, Mr Raymond Yu, urged the court to take into account that the defendant is now full of remorse and he has been cooperative to the investigating authority and he has pleaded guilty at the earliest opportunity.

Mr Yu informed the court that the defendant’s parents divorced when he was very young. Despite lack of parental care and guidance as his mother had deserted the family and his father had to work to earn a living, the defendant managed to look after himself and had not turned wayward.

He had been in steady gainful employment and his performance in different jobs impressed his employers. The defendant has been a good husband and father. He has been loving and responsible for the family and had contributed most of his income to the family. What the defendant did in this case had hurt the family and his wife had once thought of divorcing him. However, over the time she was convinced of his remorsefulness and has forgiven him. The family is now supportive of the defendant who has indicated his determination to turn over a new leaf.

In relation to the present offence, Mr Yu told the court that the defendant committed it under great financial difficulties. The Occupy Central activities had adversely affected the car sales business, in particular as the company in which the defendant worked in was situated at Mong Kok. The income of the defendant drastically reduced and he was facing great difficulties in supporting the family. He started to abuse ketamine to release his stress and frustration. He also started to meet with undesirable people. It was in these circumstances that he succumbed to the temptation of an invitation to engage in this trafficking activity.

Mr Yu stressed that the defendant had only played the role of a courier and this should be regarded as a minor role. It is also his submission that there is no aggravating feature existing in the case. He also reminded the court that this is the first time the defendant had committed a drug-related offence.

Letters written by the defendant, his wife, his father and his employers were produced. The defendant expressed his remorse. His wife spoke well of him and showed support. She also blamed herself for neglecting the defendant since she had been too occupied with work. His father asked for leniency. The employers gave good comments on the defendant both in relation to his work performance and his relationship with colleagues. The dangerous drug the defendant trafficked in was ketamine. It was 4718 grammes of a solid containing 3884 grammes of ketamine.

The Court of Appeal suggested in the case of SJ v Hii Siew Cheng [2009] 1 HKLRD 1 that a sentence of 14 years’ imprisonment and upward should be considered for trafficking in ketamine if the narcotic content is over 1,000 grammes.

In all the circumstances, I do not find there are good grounds to depart from the tariff. I have also had regard to HKSAR v Sin Chung Kin CACC 458/2011, in which the Court of Appeal observed that a sentence of over 20 years’ imprisonment should be considered if the narcotic content of ketamine being trafficked in exceeds 3,000 grammes. Although, it was not the intention of the Court of Appeal to lay down a tariff by this case, it is a weighty piece of reference.

I also bear in mind the case of HKSAR v Leung Wai Man CACC 24/2007 in which the Court of Appeal stressed that a sentencing court should avoid using an arithmetic progression in sentencing. Instead, the court should exercise its discretion according to the circumstances of the case.

I have also considered the cases referred to the court by Mr Yu.

Having considered the whole circumstances of the case, including what Mr Yu has said on the defendant’s behalf, in my judgment for Charge 1 only a starting point of 21 years is sufficient.

For Charge 2, which concerns possession by the defendant of 0.79 grammes of a solid containing 0.67 grammes of ketamine, I adopt a starting point of 9 months.

The defendant pleaded guilty and is entitled to a one-third discount for this reason.

Having regard to the whole circumstances, including submission in mitigation, in my judgment this is the extent of discount the defendant is entitled to in this case.

By reason of the matters aforesaid, I sentence you to 14 years’ imprisonment for Charge 1, and 6 months imprisonment for Charge 2.

Having regard to the totality, I order the two sentences to run concurrently. So you are to serve a total imprisonment term of 14 years for the two charges.