HKSAR v. Chu Kam Ho
Read the full judgment text of DCCC 1039/2015 on BabelCite. This District Court judgment.
1. The Defendant pleads guilty to the following charge:
Cites 4 cases
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DCCC 1039/2015 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 1039 OF 2015 -----------------------------------
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---------------------------- Reasons for Sentence ---------------------------- Charge 1.The Defendant pleads guilty to the following charge:
Facts 2.The Defendant rented the Flat from the landlord for the period of 15 June 2015 to 14 June 2017. 3.On 3 August 2015, the police conducted a search of the Flat. There were stacks of carton boxes with nylon covers and paper boxes labeled “lamps”. Some carton boxes were empty whereas 70 of them contained lamps. On top of the stacks were 4 wrapped packets of a solid, later confirmed to weigh 975 grammes containing 737 grammes of ketamine. I shall refer to it as the “Smaller Bulk” hereinafter. 4.The carton boxes, nylon covers, paper boxes, the lamps, and the packaging of the 4 packets of ketamine were similar to a certain extent to those dealt with by a logistics company earlier the same date. It was actually upon the report of that company on some suspicious circumstances that the police got involved in the matter. 5.The events which led to the report to the police were as follows. FU, a delivery worker of the company, had arrived at the Flat to deliver a parcel, which was sent from the Mainland and stated to be computer monitors, to a Mr. Chan. On all previous occasions handled by the same company, people were arranged to collect the parcels from FU on the street. Hence, he had not been to any specific Flat. This time, he tried to contact Mr. Chan with the contact number provided but in vain. He thus went to the Flat but no one opened the door. He brought the parcel back to his office and reported that he found the matter suspicious. The supervisor unwrapped the parcel and found 5 boxes labeled “lamps”. Inside each of the 5 lamps were 4 wrapped packets of a suspected dangerous drug, later confirmed to be 4,919 grammes of a solid containing 4,180 grammes of ketamine. I shall refer to it as the “Bigger Bulk” hereinafter. 6.The case was reported to the police. The police located the landlord and gained entry into the Flat for the search, which uncovered the Smaller Bulk as mentioned hereinbefore. 7.In his first cautioned video-recorded interview, the Defendant reiterated that as he was unemployed, he agreed to rent the Flat for his friend “Small V” in return for $3,000. With Small V and another friend he viewed the Flat and signed the tenancy agreement in June 2015. He gave the tenancy agreement and the keys to the Flat to Small V. He believed that Small V wanted to carry out drug dealing in the Flat by arranging logistics company of the Mainland to deliver drugs to the Flat and then to sell the drugs in Hong Kong. About 2 weeks after signing the tenancy agreement, he was told by Small V that the Flat was indeed rented for such purpose. He did not know who would assist Small V in dealing with the drugs. He was not asked to assist. He had spent the reward of $3,000. 8.In his second cautioned video-recorded interview, the Defendant said that he had not asked Small V about the purpose of renting it. 9.WhatsApp records between the Defendant and Small V showed that he had sent photographs of a business card of an estate agent and his own ID card to Small V on 6 June 2015, and Small V had asked him to arrange a person to rent a flat at the price of $2,000 to $3,000 in August 2015. 10.The street value of the ketamine in mixture was estimated to be $100 per gramme. Mitigation 11.The Defendant is 20 years of age, of F. 3 education level. He has a clear record. He had worked as a cook apprentice, a renovation worker, and a transportation worker. One week before the arrest, he had lost his job. He committed the present offence to support his living expenditure. 12.His solicitor Mr. Kwok said that the Defendant was of young age and did not know that drug trafficking was an offence with serious penal consequence. He thought it was like smoking in prohibited areas. I reject this as incredible. 13.Mr. Kwok refers me to the case of HKSAR v Lee Shek-tsui & Anor. HCCC 443/2014. A1 there pleaded guilty to the same charge as herein. The police raid the 1st Accused’s rent flat in his presence and uncovered 104.31 grammes of Ice. He admitted that he knew the 2nd Accused would come to the flat to play mahjong every two to three days. She would bring along Ice for sale and consumption there, and had taken Ice to the flat on three occasions. There were also instances when she delivered dangerous drugs from the flat, or people collected dangerous drugs from her. On the date in question, she had asked him if he wanted the Ice, which he declined. He did not stop her because they were friends and he did not want to cause trouble. The street value of the Ice found in the flat was $56,325. 14.Yau J considered that 104.31 grammes of Ice would be in the band of 10 – 14 years for 70 – 300 grammes according to the sentencing guidelines. He took 10 years and 7 months as the starting point in respect of the 2nd Accused. He took 4 years as the starting point in respect of the 1st Accused. 15.Counsel in Lee Shek-tsui (above) had cited the case of HKSAR v Ho Wing-to & Anor CACC 264/2010 in which the Court of Appeal after reviewing a number of cases dealing with the sentence of that offence, held that for 34.33 grammes of Ice and 17.12 grammes and 29.8 grammes of ketamine in powder and tablet form respectively, in total worth about $26,000, the starting point should be 3 years’ imprisonment. The sentencing guidelines applicable for trafficking in Ice of 10 – 70 grammes would suggest 7 – 10 years whereas for ketamine of 10 – 50 grammes would be 4 – 6 years. 16.As I see it, the reason for Ho Wing-to to have only 3 years as the starting point, compared to 10 years and 7 months in Lee Shek-tsui is that Ho Wing-to had a smaller quantity, the dangerous drugs were in the flat only once and for a short time before the police raid, and he had insisted that the drugs be removed though in vain. 17.In Ho Wing-to (above) was cited R v Lee Kwok Keung CACC 595/1996. The applicant there pleaded guilty to the same charge herein. The applicant and the man together were stopped by the police when they left the applicant’s rented flat. Each had the keys to the flat. The applicant knew the man had Ice for sale one week before the arrest. He had also seen trafficking equipment in the man’s room. The man had told him that the Ice was for sale. He had asked the man to take away the Ice. The man paid no rent. The applicant had no reward from the man’s drug trafficking. It involved 310.52 grammes of Ice. The sentencing guidelines applicable for trafficking in Ice of 300 – 600 grammes would suggest 14 – 18 years. The Court of Appeal affirmed a starting point of 9 years. 18.Mr. Kwok suggests a sentence of 2 years for this present Defendant. Sentencing this Defendant 19.Mr. Kwok submits that the Bigger Bulk, despite the address on the parcel and the partly similar camouflaged packaging, should not be regarded as definitely to be brought into the Flat. As each previous occasion, 4 in total, reflects, the parcel had been taken up by a certain Mr. Chan on the street by telephone arrangement. I agree with this submission. It remains a speculation that the parcel containing the Bigger Bulk would be brought into the Flat. 20.For a reward of $3,000, the Defendant had given the tenancy agreement and keys to be used by Small V to the exclusion of himself. Despite being told it was for storing dangerous drugs for trafficking purpose two weeks after acquiring the tenancy for 2 years, he had knowingly allowed Small V to use the flat as a hub for dispatching and receiving dangerous drugs. He had provided the ideal facility for a drug trafficker. The store was an important part of the trafficking set-up. The Smaller Bulk was just an instance of such purpose being served in his contemplation. The Bigger Bulk might or might not eventually end up in the Flat but it reflects the limitless ambit of the Defendant’s permission to let Small V use the Flat for trafficking purpose. 21.On a charge of trafficking, the Smaller Bulk alone (737 grammes of ketamine) would have attracted a starting point of 12 – 14 years for trafficking in ketamine of 600 – 1,000 grammes according to the sentencing guidelines in HKSAR v Hii Siew-cheng [2007] 1 HKLRD 1. I understand that the Defendant is not charged with trafficking but the quantity of the Smaller Bulk remains a factor to be considered together with the Defendant’s role as the tenant of the Flat. 22.I take a starting point of 6 years. One-third off due to the plea of guilty, the sentence is 4 years. There are no other mitigating factors. This is the sentence.
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Cases cited in this judgment