HKSAR v. Tsang Ka Wing

HCCC 68/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 68 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 her own plea of two charges of trafficking in a dangerous drug and one charge of conspiracy to traffic in a dangerous drug. The dangerous drug involved in all three charges was ketamine. The guilty pleas were entered at the Eastern Magistrates’ Court.

The Particulars of Offence in respect of Charge 1 provide that on 11 July 2015, outside Flat 3908, 39th Floor, Mei Yick House, 20 Wo Chai Street, Sham Shui Po, Kowloon in Hong Kong, the defendant unlawfully trafficked in a dangerous drug, namely 52 grammes of a solid containing 44.70 grammes of ketamine.

The Particulars of Offence in respect of Charge 2 provide that on 11 July 2015, at Flat 3908, 39th Floor, Mei Yick House, 20 Wo Chai Street, Sham Shui Po, Kowloon in Hong Kong, the defendant unlawfully trafficked in a dangerous drug, namely 500 grammes of a powder containing 404 grammes of ketamine.

The Particulars of Offence in respect of Charge 3 provide that between about 11 June 2015 and 11 July 2015, both dates inclusive, in Hong Kong, the defendant conspired together with a person known as “Gwut Chai” and other persons unknown, to unlawfully traffic in a dangerous drug, namely ketamine.

The Amended Summary of Facts admitted by the defendant provides, inter alia, as follows.

Charge 1

At around 1504 hours on 11 July 2015, police officers spotted the defendant approaching Flat 3908, 39th Floor, Mei Yick House, 20 Wo Chai Street, Sham Shui Po. The defendant was intercepted outside Flat 3908. Upon searched, the following items were found:

(1) four packets of suspected ketamine (subsequently certified to contain a total of 52 grammes of a solid containing 44.70 grammes of ketamine) from the handbag the defendant was carrying;

(2) one Samsung mobile phone and one Nokia mobile phone;

(3) HK$23,610 in cash; and

(4) three keys.

The defendant was arrested. Under caution she said, “The ‘K Chai’ does not belong to me. I am only helping the others to sell them, and I would only get $100 each time”.

Charge 2

One the same day, the keys found on the defendant were used to open the doors of Flat 3908. A house search was conducted, during which the following items were found:

(1) inside a paper bag next to a sofa, two plastic bags of suspected ketamine (subsequently certified to contain a total of 500 grammes of a powder containing 404 grammes of ketamine);

(2) behind a drawer, a paper bag containing a plastic bag containing yellow powder (subsequently certified to be 308 grammes of a powder which did not contained any dangerous drug); and

(3) on a table in the living room, one electronic scale and three piles resealable plastic bags.

The defendant was arrested. Under caution, she said, “The plastic bag next to the sofa contains ‘K Chai’. But I do not know what is the thing inside the bag behind the drawer”.

Charge 3

Subsequently, a video-recorded interview was conducted with the defendant, in which she stated, inter alia, that:

(1) In order to earn quick money, she had worked for ‘Gwut Chai’ for a month.

(2) Gwut Chai would contact her through WhatsApp and give her instructions to sell the ketamine, including a buyer’s phone number, how many grammes and how much.

(3) Regarding the large bags of ketamine found at her home, she collected it from a park in Mong Kok according to Gwut Chai’s instructions.

(4) A man (aged around 30) would then attend her home to divide the ketamine into smaller packets. Each packet was about 14 grammes.

(5) The four packets of ketamine found on her person were divided from the larger bags.

(6) She assisted Gwut Chai to deliver ketamine to customers and receive payment.

(7) She would receive $100 as reward for delivering every 14 grammes of ketamine.

(8) She had earned about $10,000 for delivering for Gwut Chai.

(9) Among the cash seized from her, HK$9,000-odd belonged to her and the rest HK$10,000-odd was received from her customers.

Between about 11 June 2015 and 11 July 2015, both dates inclusive, the defendant conspired with Gwut Chai and other persons unknown to unlawfully traffic in ketamine.

The street value (in July 2015) of all dangerous drug seized is HK$80,592.

By way of personal background, the defendant is 31 years of age. She was born in Hong Kong in January 1985. She has received education up to Form 5 secondary level. At the time of her arrest she was unemployed. She had previously worked as a sales girl, a waitress and a cashier. The defendant had been addicted to dangerous drugs since 2008. She is single and has a 2-year-old son, who now lives with her half-sister.

In July 2014, the defendant was sentenced to the Drug Addiction Treatment Centre for, respectively, possession of dangerous drug and possession of equipment to take drug.

By way of mitigation, Ms Cindy Lee submitted on behalf of the defendant that she is remorseful. The defendant pleaded guilty at the first opportunity. The defendant has been cooperative with the police, in that the conspiracy, the subject matter of Charge 3, would not have come to light but for her own admissions in the video-recorded interview.

I was told that the defendant committed the offences out of financial difficulties.

Two mitigation letters from respectively the defendant and her elder sister have been submitted to the court. Their contents 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 call for severe deterrent sentences in order to protect the public.

I shall deal first with the sentences on Charge 1 and Charge 2, the trafficking charges.

In the present case, the narcotic involved in Charge 1 is 44.70 grammes of ketamine. The narcotic involved in Charge 2 is 404 grammes of ketamine.

The dangerous drugs involved in Charge 1 and Charge 2 were seized from the defendant and her residence in the course of a single enforcement operation and separately charged. In those circumstances, it is clearly appropriate to sentence the defendant on the total quantity of dangerous drug (ie, 448.70 grammes of ketamine), rather than on the individual smaller quantities.

Accordingly, I shall first consider the overall sentence to be imposed, based on the total quantity of narcotic involved in Charge 1 and Charge 2.

The Court of Appeal, in the case of Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, has set out the tariffs for trafficking in ketamine. For trafficking in between 300 to 600 grammes of ketamine, the proper sentence to be imposed after trial should be 9 to 12 years’ imprisonment.

In my view, following the guidelines in the Hii Siew Cheng case and based on the total quantity of narcotic involved in Charge 1 and Charge 2, the appropriate overall starting point for sentence in respect of those two charges should be 10 years’ and 5 months’ imprisonment.

I shall give the defendant the full one-third discount from the overall starting point for her guilty plea. This results in the total sentence of 6 years and 11 months’ imprisonment for Charge 1 and Charge 2.

In order to achieve the appropriate totality of sentence of 6 months’ and 11 months’ imprisonment, I order as follows:

(1) In respect of Charge 1, for the quantity of narcotic involved (44.70 grammes of ketamine), I adopt the starting point of 5 years and 8 months’ imprisonment. After affording the defendant a one-third discount, the sentence on Charge 1 is 3 years and 9 months’ imprisonment.

(2) In respect of Charge 2, for the quantity of narcotic involved (404 grammes of ketamine), I adopt the starting point of 10 years’ imprisonment. After affording the defendant a one-third discount, the sentence on Charge 2 is 6 years and 8 months’ imprisonment.

(3) 3 years and 6 months of the sentence on Charge 1 is to run concurrently with the sentence on Charge 2. This results in a total sentence of 6 years and 11 months’ imprisonment on Charge 1 and Charge 2.

I turn now to the sentence on Charge 3.

As set out above, in the video-recorded interview, the defendant has admitted that she would receive $100 as reward for delivering every 14 grammes of ketamine. The defendant further admitted that she had earned about $10,000 for delivering ketamine for Gwut Chai.

In mitigation, the defendant qualified these answers by saying that, in fact, out of the $10,000 received from Gwut Chai, around $1,500 to $2,000 were for storage of the drugs, and the actual amount received for delivering the drug (at the rate of $100 per 14 grammes) was in fact around $8,000. This implies that the defendant must have trafficked around 1,100 grammes of ketamine pursuant to the conspiracy charged. As confirmed by Ms Lo, this is not disputed by the prosecution.

As to the duration of the conspiracy, it lasted for about a month, from 11 June 2015 to 11 July 2015.

The quantity of ketamine involved in the conspiracy is substantial. In fact, beyond the uppermost band of 1,000 grammes in the case of Secretary for Justice v Hii Siew Cheng (supra). 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 present case, in my view, avoiding mere arithmetical progression but bearing in mind that, as a result of the conspiracy, around 1,100 grammes of ketamine were trafficked, an appropriate starting point for Charge 3 would be one of 14 years and 3 months’ imprisonment.

In coming to this figure, I have taken into account that Charge 3 and its scope only came to light as a result of the defendant’s admission in her video-recorded interview. On the other hand, I have also taken into account the duration of the conspiracy.

After giving the defendant a one-third discount for her guilty plea, the sentence on Charge 3 is 9 years and 6 months’ imprisonment.

It is not entirely clear from the Summary of Facts whether the drug in respect of which the defendant has received payments for delivery include the drug actually seized by the police on 11 July 2015.

In the circumstances, the defendant being entitled to the benefit of any uncertainty, I would order the sentences on Charge 1 and Charge 2 to run wholly concurrently with the sentence on Charge 3. The total sentence which the defendant has to serve is therefore 9 years and 6 months’ imprisonment.