HKSAR v. Tsang Bing Him

HCCC 122/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 122 OF 2015

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REASONS FOR SENTENCE

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1.The defendant has pleaded guilty to two counts of trafficking in a dangerous drug before trial which was fixed to take place in April of this year. The two counts of trafficking took place on 4 September 2014, and the quantity of drugs involved under Count 1 were 10,808.10 g of a powder containing 4,598.70 g of ketamine, and under Count 2 were 1,370 g of a powder containing 207 g of ketamine. The total narcotic content of ketamine was 4,805.70 g.

2.The defendant was 18 years of age at the time of the offence.  The sentencing of an offender for a criminal offence is not an easy task for a court, and is made all the more difficult, when the offender is a young person having committed a very serious crime.  

3.The defendant upon his plea of guilty to the two counts agreed the following facts.  On 4 September 2014, customs officers in plainclothes conducted an anti-drug operation in San Tin, Lok Ma Chau. Sometime in the evening, the defendant was seen leaving an apartment in that locality, carrying a shoulder bag and a travelling bag.  It was suspected that the bags contained drugs and he was intercepted by the customs officers.  He tried to run away but was subdued by the customs officers.  He was arrested and cautioned and remain silent.  The bags were searched and found inside was 10,808.10 g of a powder containing 4,598.70 g of ketamine (Count 1).

4.The defendant was then escorted to the apartment that he had been previously seen leaving.  The customs officers gained access to the apartment using keys that were found in the defendant’s possession.  The customs officers searched the apartment and in the living room they found a handbag and a rucksack containing 1,370 g of a powder containing 207 g of ketamine (Count 2).  They also found on a table in the living room plastic bags, zip lock bags, an electric scale, a heat sealing machine and a pair of gloves.  These items were typical paraphernalia used in the packaging and distribution of drugs.  

5.The defendant was cautioned, whereupon he admitted that the drugs found in the apartment were ketamine and that they belonged to him, that he would distribute the drugs to others, and that the packaging paraphernalia found on the table of the living room was for packing “K Chai”, a reference to ketamine. 

6.The defendant admitted that he possessed the drugs as specified in the two counts from the purpose of trafficking in them. 

7.The street value of the drugs at the time of the offence was $1,546,618.00.

8.It beggars belief that the defendant given his age and the nature and quantity of drugs involved, that others more senior and in greater control were not involved in the trafficking of the drugs. 

9.The defendant at the time of the offence was unemployed and living with his parents in the New Territories.  They appear to be a close-knit family and the defendant is the only child.

10.I have had submitted to me a letter from the defendant as well as a letter from each of his parents. 

11.The defendant tells me that he deeply regrets what he has done and only has himself to blame for this incident.  He says that he got involved in this crime by being reckless and meeting the wrong people and not listening to his parents.  He acknowledges that in the past he has been immature and emotional, and that this incident has taught him a huge lesson. He says that although he did not perform very well at school he was a responsible person when he was working and truly wants to make amends for what he has done, especially to his parents, who he says he loves dearly.  He asks the Court to treat him leniently so that he can correct the error of his ways and be given a chance to redeem himself for the sake of his parents. 

12.Both parents tell me of the distress and hurt that they are suffering for the terrible crime that their only child has committed.  They tell me that their son is a good person and that they feel partly responsible for what he has done and will ensure in the future that they give him all the necessary supervision and guidance so does not make the same mistake again.  They asked that he be treated leniently. 

13.The defendant has two previous convictions.  One for assaulting police in 2010 when he was 14½ years and the other for trafficking in a dangerous drug which I am informed was 10 g of cocaine, in 2011, when he was 15½ years for which he received a training centre order.  He was released from the training centre in April 2013. 

14.It is a pity that the defendant did not take advantage of the opportunity presented to him to rehabilitate and reform when serving the training centre order.  Had he done so, he may not be before me today.

15.Mr Joseph Lee, counsel for the defendant, submits that the defendant left school at an early age and worked part time as a transportation worker but was otherwise unemployed.  He says that the defendant wanted to make quick money in order to live the same life style of his friends and through “a friend of a friend” an opportunity was presented to him to make some quick money.  He was offered $10,000 to transport the drugs from the flat to a person at a nearby car park.  Even though he has taken the full brunt of this crime, he cannot identify who else was involved or assist the authorities in tracking down the major miscreants in this drug trafficking operation. 

16.Ketamine is a popular drug amongst the youth of Hong Kong, inflicting serious harm on drug abusers, where drug traffickers recruit young people to assist in the distribution and supply of the drugs to them.  Despite the young age of the defendant, he has committed a very serious crime where his youth is most likely the reason for his recruitment and involvement in the drug trade.  The youth of those who commit serious drug offences will generally carry very little weight, if any at all, when sentenced.

17.Sentencing a young person for a serious crime will necessarily involve striking of balance between the demands of proportionate punishment and reform of the offender.  In imposing a sentence on a young offender where the focus is on deterrence and retribution, it is important not to lose sight of, and to appropriately address, considerations of rehabilitation and reform.  

18.I will combine the narcotic content of the ketamine of the drugs under the two counts for the purpose of sentencing.  The narcotic content of ketamine in Count 1 is 4,598.70 g and in Count 2 is 207 g, thus making a total of 4,805.70 g. 

19.The sentencing regime for trafficking in ketamine is governed by guidelines laid down in S for J v Hii Siew Cheng [2009] 1 HKLRD 1 and for large quantities of the drug further guidance and discussion has been provided in HKSAR v Ng Hon Keung [2012] 1 HKLRD 1017; HKSAR v Sin Chung Kin [2013] 1 HKLRD 627; HKSAR v Chow Yau Ching [2014] 2 HKLRD 639 and HKSAR v Sze Kin Wang [2014] HKEC 1195.  In the latter case, Lunn VP, giving the judgment of the Court, said in relation to the guidelines at paragraph 21:

“The guidelines for sentencing in cases of unlawful trafficking in ketamine articulated in the judgment of the court in the Secretary for Justice v Hii Siew Cheng provide for the imposition of sentences of 14 years’ imprisonment and upwards for unlawful trafficking in amounts over 1,000 grammes. In HKSAR v Sin Cheung Kin this Court observed that, where large quantities of ketamine were involved, although it was not appropriate to enhance the starting point proportionally, nevertheless “the larger the quantity of drug used, the more severe the sentence will be.” The Court went on to suggest that unlawful trafficking in 2,000 and 3,000 grammes of ketamine should attract sentences of imprisonment of 18 and 20 years respectively. However, as was made clear in the judgment of this Court in HKSAR v Chow Yau Ching and HKSAR v Sin Cheung Kin the Court was not purporting to lay down new guidelines for sentence.”

20.It should be noted that the tariffs for sentence after trial for traffickers in ketamine are laid down in Hii Siew Cheng which sets out for a quantity of over 1,000 g a sentence of imprisonment of 14 years upwards.  In Chow Yau Ching, it was reiterated that Sin Cheung Kin was not laying down new guidelines for sentence where large quantities of ketamine were involved, but rather noting that generally the greater the quantity of drugs, the greater the sentence, and that there should be some meaningful distinction between traffickers who deal in significantly greater quantities from each other, and that a distinction should also be drawn between a sentence where there are aggravating factors and a sentence where no aggravating factors are present.  For large quantities of ketamine beyond 3,000 g, high starting points of terms of imprisonment have been imposed and have exceeded 20 years. 

21.Taking into account the relevant sentencing guidelines and principles, as well as the role played by the defendant in this crime and his young age, I will adopt a starting point of 20 years’ imprisonment which I will reduce by one third for his plea of guilty to 13 years and 4 months’ imprisonment. 

22.As indicated, I have imposed this sentence by combining the narcotic content of the ketamine in the two counts.  I will apportion the sentence in relation to the two counts as follows.  On Count 1, I will adopt a starting point of 20 years’ imprisonment which I will reduce by one third for the defendant’s plea of guilty to 13 years and 4 months’ imprisonment.  On Count 2, I will adopt a starting point of 7 years and 9 months’ imprisonment which I will reduce by one third for the defendant’s plea of guilty to 5 years and 2 months’ imprisonment.  To bring the sentence in line with the sentence that I have imposed by taking a combined approach of 13 years and 4 months’ imprisonment, I will make the sentence on Count 2 wholly concurrent to the sentence on Count 1.

23.Accordingly, the defendant is sentenced to 13 years and 4 months’ imprisonment.

Mr Laurence Poots, counsel for fiat, for HKSAR

Mr Joseph Lee, instructed by Damien Shea & Co., assigned by Director of Legal Aid, for the defendant