HKSAR v. Lee Cheuk Hang

HCCC 382/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 382 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 on two charges of trafficking in a dangerous drug (Count 2 and Count 3 on the Amended Indictment).

The Particulars of Offence for Count 2 provide that on 14 April 2015 at Lung Mong Building, 125 Fa Yuen Street, Mong Kok, Kowloon in Hong Kong, the defendant unlawfully trafficked in a dangerous drug, namely 13 grammes of a powder containing 9.47 grammes of ketamine.

The Particulars of Offence for Count 3 provide that on 14 April 2015 at Room B, Flat 38A, 1st Floor, Lung Mong Building, 125 Fa Yuen Street, Mong Kok, Kowloon in Hong Kong (“the Room” and “the Flat” respectively), the defendant unlawfully trafficked in a dangerous drug, namely 504 grammes of a powder containing 367 grammes of ketamine.

The Summary of Facts admitted by the defendant provides, inter alia, that in the evening of 14 April 2015, a team of police officers attached to Special Duties Squad Tsuen Wan District, acting on information, lay ambush outside the Flat. When the defendant came out of the Flat, he was intercepted by the police officers and a bag containing 13 grammes of a powder containing 9.47 grammes of ketamine was found hidden in one of the sneakers worn by the defendant.

The defendant admitted that he obtained the ketamine from what he described as the “warehouse”, namely the Room. He was therefore arrested for the offence of possession of dangerous drugs.

The defendant then led the police officers to enter the Flat and then the Room using one of the keys found on him.

On the bed inside the Room, the police officers found, inter alia:

(1) 38 resealable transparent plastic bags containing a total of 505 grammes of a powder containing 367 grammes of ketamine.

(2) An electronic scale.

(3) An electronic sealing machine.

(4) A large number of resealable transparent plastic bags.

The defendant admitted that:

(1) The 38 bags of ketamine were for sale to his friends.

(2) He would earn HK$50 per bag.

(3) The scale was used to weigh the ketamine.

(4) The sealing machine was used to seal the bags.

The defendant was therefore further arrested for the offence of trafficking in dangerous drugs.

In the afternoon of 15 April 2015, the defendant was interviewed by police officers attached to the District Crime Squad 2, Tsuen Wan District. In the interview, the defendant stated that:

(1) He was allowed by a person known as “Hak Chai B”, whom he had met earlier in an amusement game centre, to reside in the Room.

(2) He sold ketamine for Hak Chai B earning HK$50 for each delivery and he had already earned HK$3,000.

(3) He only met Hak Chai B for three or four times in Mong Kok and mainly communicated with him using a mobile messaging communication service known as WeChat on the smartphone seized from him.

(4) On a day in April 2015, on the instructions given by Hak Chai B through WeChat, he collected a box containing ketamine left outside the Flat.

(5) He then repackaged the ketamine into smaller bags of 3 grammes of 14 grammes each and delivered the same in accordance with the instructions given by Hak Chai B through WeChat.

The estimated street value of the ketamine seized (totalling 376.47 grammes) as of April 2015 was about HK$62,040.

By way of personal background, the defendant is 17 years of age. He was born in January 1999. At the time of his arrest on 14 April 2015, he was aged 16 and was a Form two student. His parents are both aged around 50. Both of the defendant’s parents are unemployed and receive CSSA every month. The defendant has two older sisters, aged respectively 19 and 22. The defendant does not have any previous criminal conviction.

By way of mitigation, Mr Ching Wan-fung on behalf of the defendant urged upon this court to take into account the defendant’s guilty plea, and that the defendant is remorseful for having committed the offences in question. Mr Ching also asked this court to take into account the defendant’s young age.

Mitigation letters from the defendant’s parents, his two sisters, a cousin, two aunts and one of his school teachers have been submitted to the court and the contents thereof have been duly noted.

However, as has been pointed out by the courts on many previous occasions, personal and family circumstances of a defendant will offer little mitigation in serious cases of drug trafficking, which demand deterrent sentences in order to protect the public.

In the present case, the narcotic involved in Count 2 is 9.47 grammes of ketamine. The narcotic involved in Count 3 is 367 grammes of the same drug.

This is a case where different quantities of narcotics were seized from the defendant in the course of an enforcement operation and separately charged. Having regard to the proximity in time and place in respect of the commission of the two offences, clearly, they fall to be considered together.

In my view, this is a case where I should consider the defendant’s overall sentence from the point of view of the total quantity of the dangerous drug (ie, 376.47 grammes of ketamine), rather than the individual smaller quantities.

The tariffs for trafficking in ketamine have been laid down by the Court of Appeal in Secretary for Justice v Hui Siew Cheng [2009] 1 HKLRD 1. In the Hui Siew Cheng case, the Court of Appeal held that for trafficking in between 300 grammes to 600 grammes of ketamine, the proper sentence to be imposed after trial should be 9 to 12 years’ imprisonment.

In my view, based on the total quantity of the narcotic involved in Count 2 and Count 3 (376.47 grammes of ketamine), the appropriate overall starting point for sentence in the present case should be 9 years and 9 months’ imprisonment.

In regard to the defendant’s age, the Court of Appeal stated in R v Lau Tak Ming [1990] 2 HKLR 370 at 386F-G as follows:

“It must be borne in mind that these are offences of the utmost gravity which may well result in mitigating factors which, for less serious offences could lead to a discount, having little weight. By this we mean age and disability - though extreme youth may call for special consideration. Drug dealers are notorious for attempting to elicit sympathy from the Courts for their middlemen by the use of the blind, the maimed, the halt, the young and the aged in the carrying out of their nefarious trade.”

In the present case, I do not feel able to regard the defendant as a person of extreme youth. He was aged 16 at the time of the offence.

I shall, however, give the defendant the full one-third discount for his guilty plea from the overall starting point of 9 years and 9 months’ imprisonment. This results in a total sentence of 6 years and 6 months’ imprisonment.

In order to achieve the appropriate totality of sentence of 6 years and 6 months’ imprisonment, I order as follows:

(1) In respect of Count 2, for the quantity of narcotic involved, I adopt the starting point of 3 years and 10 months’ imprisonment. After affording the defendant a one-third discount, the sentence on Count 2 is 2 years and 6 months’ imprisonment.

(2) In respect of Count 3, for the quantity of narcotic involved, I adopt the starting point of 9 years and 8 months’ imprisonment. After affording the defendant a one-third discount, the sentence on Count 3 is 6 years and 5 months’ imprisonment.

(3) One month of the sentence on Count 2 is to run consecutively to the 6 years and 5 months’ imprisonment on Count 3, with 2 years and 5 months to run concurrently.

This results in a total sentence of 6 years and 6 months’ imprisonment.