HKSAR v. Ling Ka Keung, Eddie

HCCC 439/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 439 OF 2014

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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 after trial by a jury of trafficking in dangerous drugs, namely 3,690.43 grammes of a mixture containing 3,164.45 grammes of heroin hydrochloride and 4,709 tablets and 4.5 grammes of tablet fragments containing 66.96 grammes of methamphetamine. He is jointly charged together with the three prosecution witnesses, PW1, 2, and 3.

The facts reveal that the defendant was the person who recruited those three witnesses to Cambodia and he was the person who supplied the drugs in this charge and he was also the person who helped them strap it on their persons prior to leaving Cambodia for Hong Kong.

He had the plan that upon arrival in Hong Kong, they would take the boat from Hong Kong to Shekou and he was the person who bought the ferry tickets. So it is clear that the defendant’s role was a prominent one and what would be referred to as a senior player in this enterprise.

Because this case happened in 2006, it was pre Abdallah and, therefore, the only guidelines relevant in consideration of the sentence was the case of Lau Tak Ming.

The case of Lau Tak Ming was in 1990 and it lay down guidelines for trafficking in heroin or cocaine and no greater than, and up to, 600 grammes. For amounts above 600 grammes, the sentences were really very much a matter for the trial judge in individual cases.

However, I am grateful to Mr Arthur for drawing to my attention that in the case of HKSAR v Abdallah reported in 2009 that the Court of Appeal there in considering new guidelines had very helpfully, at paragraph 19, set out the cases pre Abdallah and the amounts and the starting point as a reference.

Included in the list are several cases which contain an international element. In the case of HKSAR v Hong Chang Chi [2002] 1 HKLRD 486 it concerned importation of cocaine of about 3,000 grammes, and the Court of Appeal in that case of Hong Chang Chi actually said that the starting point of 27 years, although high, is not manifestly excessive.

In the present case before me I would add the two substances, that is heroin hydrochloride together with methamphetamine, and the quantity would be in the region of 3,231 grammes. So, therefore, it is not much different from the case of Hong Chang Chi I have just referred to.

Mr Tsui in mitigation was trying to persuade this court to take a starting point of 24 years’ imprisonment prior to enhancing it for the aggravating factor of the international element and the fact of the defendant’s senior role in this operation because he says that even in the Abdallah guidelines for trafficking in between 1,200 to 4,000 grammes the guideline recommended that the starting point sentence should be between 23 to 26 years’ imprisonment. I cannot relate the sentence to Abdallah because it has no retrospective effect.

Looking at the table of cases pre Abdallah, which I have just mentioned, it would seem that a very close quantity to our present case is, as I have said, in Hong Chang Chi. In that case, the facts were only that the appellant was arrested at the Chek Lap Kok Airport with the cocaine strapped to his body. So the aggravating factor in that case is, actually, the international element only. In that case, the Court of Appeal said it was a high sentence, 27 years, which the learned judge adopted but it was not manifestly excessive.

In our present case, we have a further aggravating factor of the defendant’s prominent role in this enterprise.

Considering all the facts in this case and the circumstances, I consider that a starting point of 25½ years is appropriate and, further, it is to be enhanced by 1½ years to take into account the international element and the role of the defendant.

The defendant is sentenced to 27 years.