HKSAR v. Li Yuanhong

HCCC 12/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 12 OF 2016

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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 of one charge of trafficking in dangerous drugs.

The Particulars of Offence provide that on 15 April 2015, at Room 1716, Kwai Yuet House, Lower Ngau Tau Kok Estate, Ngau Tau Kok, Kowloon, in Hong Kong, the defendant unlawfully trafficked in dangerous drugs, namely 32.34 grammes of a solid containing 18.11 grammes of cocaine and 2,982 grammes of a powder containing 2,367 grammes of ketamine.

The Summary of Facts admitted by the defendant provides, inter alia, that at about 7.45 pm on 15 April 2015, during an anti-narcotics operation, the police gained entry into the address stated in the charge, when the defendant’s mother was about to enter the premises. The defendant was present therein. Upon a house search, a box containing 36 packets of suspected cocaine (“E1”), an electronic scale, a spoon, a metal rod, 74 empty resealable transparent plastic bags, and cash of HK$5,000 was found inside a drawer in the defendant’s bedroom.

The defendant was arrested for trafficking in a dangerous drug. Under caution, he admitted that he bought the cocaine to resell them to friends.

The house search continued and three paper bags, each containing a resealable transparent plastic bag of suspected ketamine (collectively referred to as “E2”), wrapped in wrapping paper, were found underneath the defendant’s bed.

The defendant was further arrested for trafficking in a dangerous drug. Under caution, he claimed that someone had delivered the three packages of stuff to him that afternoon and he did not know what they were; he just kept them at home temporarily.

Upon forensic examination, it was confirmed that E1 contained 32.34 grammes of a solid containing 18.11 grammes of cocaine, and E2 contained 2,982 grammes of a powder containing 2,367 grammes of ketamine.

At subsequent cautioned video-recorded interviews, the defendant stated, inter alia, that:

(i) He was not a drug addict and he was unemployed since February 2015.

(ii) In respect of the seized cocaine, “Ah Chu” recruited him to engage in drug trafficking in March 2015 and had taught him relevant technical terms and how to package cocaine.

(iii) He contacted Ah Chu for the supply of cocaine, who would then contact a taxi driver to contact him and pass him the cocaine.

(iv) Ah Chu would pay the taxi driver in advance on his behalf. After he got the cocaine, Ah Chu would instruct him to leave the cocaine purchase price at a certain location.

(v) In the present case, the defendant had purchased HK$15,500 worth of cocaine from Ah Chu.

(vi) He repackaged the cocaine at home with the packaging paraphernalia seized from home, and the HK$5,000 found were proceeds of trafficking.

In the defendant’s mobile phone, photographs capturing the three paper bags containing the ketamine (E2), in both wrapped and unwrapped form, placed on an electronic scale showing their respective weights, were found. The defendant’s “WeChat” record also showed that he had sent these photographs to a person nicknamed “KDB”.

As in April 2015, the estimated street value of the seized cocaine was HK$37,062 and that of the seized ketamine was HK$357,840.

In the Summary of Facts, the defendant expressly admitted and accepted that, at all material times, he unlawfully trafficked in the cocaine (E1) and the ketamine (E2).

By way of personal background, the defendant is 19 years of age. He was born in mainland China in November 1996. He is single. The defendant has received education up to form four level. I was told that at the time of his arrest, he was a waiter working in Shum Shui Po earning a monthly salary of about HK$5,000. The defendant lived with his mother at the time of his arrest.

The defendant does not have any previous criminal conviction.

By way of mitigation, Mr Kwan Tong-lee submitted on behalf of the defendant that he is most remorseful for having committed the offence in this case.

I was told that the defendant’s father deserted the family when the defendant was 3 years old. His mother came to Hong Kong to make a living, leaving the defendant in the care of a foster family. The defendant did well in primary school. He came to Hong Kong in 2007.

Unfortunately, due to years of hard work, the defendant’s mother suffered a serious back condition requiring surgeries. She could no longer work. I am told that the defendant committed the present offence in order to earn fast money to help his mother.

Mitigation letters from, inter alios, the defendant, the defendant’s mother, his cousin and his brother in the foster family have been submitted to court. Two other bundles containing, respectively, the defendant’s school reports and various certificates for his achievements at school have also been submitted. Their contents have been duly noted.

However, as has been stated by the courts on many previous occasions, personal and family circumstances of the defendant, and the circumstances leading to an offence, would count much less in drug trafficking cases than in others, because that offence demands, as a matter of public protection, deterrence as an overwhelming consideration.

The defendant has been convicted of one charge of trafficking in dangerous drugs, namely 2,982 grammes of a powder containing 2,367 grammes of ketamine, and 32.34 grammes of a solid containing 18.11 grammes of cocaine.

The quantity of ketamine involved in this case is very substantial. In fact, way beyond the uppermost band of 1,000 grammes in the case of Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, which sets out the tariffs for trafficking in ketamine. In the Hii Siew Cheng case, the Court of Appeal held that for trafficking in over 1,000 grammes of ketamine, the proper sentence after trial should be 14 years upwards.

In HKSAR v Sin Chung Kin [2013] 1 HKLRD 627, the Court of Appeal, having considered the rate of enhancement of starting points for trafficking in large quantities of other dangerous drugs (such as heroin and ‘Ice’), made the observation that the appropriate starting points for trafficking in 2,000 grammes and 3,000 grammes of ketamine should, respectively, be no less than 18 years and 20 years.

In the Sin Chung Kin case, the narcotics involved were 5.12 kilogrammes of ketamine and 18.8 grammes of cocaine. The Court of Appeal approved of the overall starting point of 22 years, noting that the starting point for trafficking in 18.8 grammes of cocaine alone could be as long as 6 years.

The analysis in the Sin Chung Kin case was reaffirmed by the Court of Appeal in HKSAR v Chow Yau Ching [2014] 2 HKLRD 639. At paragraphs 17 and 18 of its Judgment, the Court of Appeal expressly endorsed the view that:

“there should be a meaningful distinction between the sentence for trafficking in only 600 grammes of heroin and that for trafficking in twice that quantity...”.

The Court of Appeal further held that the principles set out in the above-quoted passage are applicable to trafficking in large quantities of any dangerous drugs, including ketamine.

In the Chow Yau Ching case, the Court of Appeal approved a starting point of 19 years and 9 months for trafficking in 2.89 kilogrammes of ketamine.

In the present case, the narcotics involved are 2,367 grammes of ketamine and 18.11 grammes of cocaine.

In my view, having regard to all the circumstances, and taking into account the authorities cited above, the appropriate starting point for sentence in the present case should be 19 years and 9 months’ imprisonment.

In arriving at the appropriate starting point, I have taken into account the circumstances of the offence, the role played by the defendant and the quantity of the narcotics involved.

I have taken into account that the starting point for trafficking in 2,367 grammes of ketamine alone would be around 18 years and 9 months’ imprisonment.

I note also that the starting point for trafficking in 18.11 grammes of cocaine alone would be around 5 years and 7 months’ imprisonment.

I also took into account that the trafficking offence is made more serious with the involvement of two kinds of drugs.

However, in final analysis, I have also taken into account that there should be “a meaningful distinction” between the sentence in the Sin Chung Kin case referred to above (which also involved ketamine and cocaine) and that in the present case, based on the substantially lesser quantity of ketamine involved (2.367 kilogrammes versus 5.12 kilogrammes).

I shall give the defendant the full one-third discount for his guilty plea, which was tendered at the first opportunity at the Magistrates’ Court.

The defendant is accordingly sentenced to 13 years and 2 months’ imprisonment.