COURT: I propose to explain why I have come to the sentence I have. The accused can, for present purposes, remain seated.
Wong Yan-ting, the accused, pleaded guilty to trafficking in a dangerous drug, pursuant to Section 4 of the Dangerous Drugs Ordinance, Cap 134.
The particulars of the offence are that on 3 March 2015, at Lok Ma Chau Spurline Control Point, she unlawfully trafficked in a dangerous drug, namely 3.94 kilogrammes of a powder containing 3.26 kilogrammes of ketamine.
Following her plea of guilty to this charge, she admitted to a Summary of Facts. The essence of that Summary of Facts is as follows:
On 3 March 2015, at about 12.08 pm at the Lok Ma Chau Spurline Control Point, the accused was stopped by Acting Senior Customs Officer 9789, Mr Cheung Siu-hang, as the accused was passing through the green channel, for baggage examination. The green channel is for use for persons arriving in Hong Kong with nothing to declare for customs purposes.
The accused was asked by Acting Senior Customs Officer 9789 to stop. He examined the two bags contained in her left hand, one of those bags was a black plastic bag, Exhibit P10, and the other is a paper bag, Exhibit P6.
Customs Officer 9877, Ms Cheung Shuk-ting then examined the contents of the two bags. The examination was carried out in the presence of the accused and Acting Senior Customs Officer 9789. Customs Officer 9877 found a box in the black plastic bag. The box is P9. Inside that box was six transparent resealable bag, each containing a white crystalline substance which was suspected to be dangerous drugs.
Inside the other bag the accused was carrying, the paper bag, was the paper box, which is Exhibit P5. Inside that paper box, which in turn contained another black plastic bag, found inside that bag was 10 resealable plastic bags containing suspected dangerous drugs.
The accused was asked about the transparent resealable plastic bags containing the suspected dangerous drugs, specifically, Customs Officer 9877 asked the accused, “What are these?” The accused answered, “I don’t know.” Another customs officer conducted what is known as an ION-scan test on the bags, which revealed the positive result for dangerous drugs.
Following that, the accused was arrested for an offence under the Dangerous Drugs Ordinance. The accused was cautioned and said she understood the caution. Further questions were put to the accused following the caution. The essence of her answer to those questions is that she did not know what the white crystalline substance was in the resealable transparent bags which were the subject of her arrest.
In those questions, she told Customs Officer 9877 that she was given these bags by a person whom she didn’t know. The bags were given to her by that person at the Futian Control Point. She said she was carrying the material to Kowloon Tong, and she would be called by telephone as to the specifics of the delivery. She said that she was to receive $3,000 as a reward for carrying this material.
The accused was also asked whether she would wish to work with the Customs Service to conduct what is known as a Control Delivery. She was told by the customs officers that whether or not the operation is successful, she would not obtain any advantage from it. To this, the accused answered, “I am willing and understand. I know that there would not be any advantage from it.”
At the time she was intercepted, the accused was found to carrying a mobile telephone, P13, and two SIM cards, Exhibit P16 and 17, and was carrying a micro SD card, Exhibit 15. Between about 12.30 pm and 4 pm, the accused participated in receiving or making a series of telephone calls. She did so under the supervision of Customs Officer 9545 and Customs Officer 98256. These officers were responsible for guarding the accused. In the call, the accused pretended that she was somewhat anxious about passing through mainland customs, and that eventually she passed through mainland customs, and also Hong Kong customs.
She also asserted that she was proceeding to Kowloon Tong. She received the description of the recipient of the plastic resealable bags, and that in the upshot, she had arrived at Kowloon Tong. A controlled delivery took place, and the recipient of the bags was arrested.
The suspected dangerous drugs were sent to the government laboratory for analysis, and a certificate from the government chemist revealed that the plastic resealable bags contained, in total, the quantity referred to in the particulars of offence, that is, 3.94 kilogrammes of a powder containing 3.26 kilogrammes of ketamine.
The accused participated in a video-recorded interview on 4 March 2015, between 2.40 pm and 3.08 pm. The interview was conducted under caution. In that interview, the accused revealed that she was unemployed and the goods, the subject of the charge was given to her on the mainland, and that she was asked to deliver these goods to another person in Hong Kong.
She said that she got to know the person on the mainland online. She met two persons in a coffee shop in Futian, and received the dangerous drugs, the subject of the indictment, from them. She gave what were characterised as brief descriptions of those two persons. She said she did not know them, and the initial telephone contact through which she met these people was not something that she remembered.
The accused also admitted in the interview that she was to be paid $3,000. The arrangements were that she would be paid 500 renminbi in advance, and that the balance would be remitted to her bank account in Hong Kong following delivery.
The records maintained by the Immigration Department revealed that the accused left Hong Kong on 3 March 2015 at 10.22 am.
The Summary of Facts admitted by the accused reveals that she now admits that at the time she was at the Lok Ma Chau Spurline Control Point, she knew that she was carrying dangerous drugs and was in possession of those drugs for the purpose of unlawful trafficking. It is also admitted by the accused that the quantity of ketamine carried by the accused, had it been sold to drug users in Hong Kong in March 2015, was worth something in the region of $464,000.
Ketamine is a dangerous drug, see Section 2 of the Dangerous Drugs Ordinance in Schedule 1. The maximum penalty for unlawful trafficking in a dangerous drug is a fine of $5 million or life imprisonment, or both. The courts of Hong Kong have articulated a series of guidelines for sentence in respect of the unlawful trafficking of dangerous drugs, and in particular, for the unlawful trafficking of ketamine. On any view, the penalties revealed in those guidelines reflect the serious view that the courts, on behalf of the Hong Kong community, take of such conduct.
That such a serious view is taken reflects, amongst other things, the real danger to both an individual who takes ketamine and to the community who might have to deal with consequences of those who take ketamine.
The danger to the individual who ingests ketamine was outlined in depressing detail by the Court of Appeal in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1. On any view, both the short term and the long term consequences are potentially very serious indeed. The sentencing guidelines outlined in that case reflect this. Sentencing guidelines for the unlawful trafficking in ketamine outlined in that case are as follows, and I only propose to read in open court the last one: “Over 1,000 grammes, 14 years and upwards.”: [2009] 1 HKLRD 1, #95
In HKSAR v Sin Chung Kin [2013] 1 HKLRD 627, the Court of Appeal provided additional guidelines for cases involving the unlawful trafficking of more than 1,000 grammes of ketamine. The court held that the appropriate starting points for trafficking in 2,000 and 3,000 grammes of ketamine should be no less than the imprisonment for 18 years and 20 years respectively. Where more than 3,000 grammes of ketamine was involved, the starting point could exceed 20 years, although the increase in sentence would not be proportional to the increase in drug quantity, and it would be for the court to pass such sentence as was appropriate in the circumstances of the particular case. That case involved the unlawful trafficking of 5.12 kilogrammes of ketamine and the Court of Appeal held that a sentence of 22 years was not excessive.
Sentences for the unlawful trafficking in large quantities of ketamine were further considered by the Court of Appeal in Chow Yau Ching [2014] 2 HKLRD 639. In that case, the Court of Appeal reaffirmed what had been said in Sin Chung Kin (above). Barnes J for the Court of Appeal observed, in relation to the decision of the Court of Appeal in Sin Chung Kin, and I will read the quote in a minute. The quote is: [2014] 2 HKLRD 639, #15
“The Court of Appeal did not revise the sentencing guideline in Sin Chung Kin. It was only because of the lack of further elaboration in Secretary for Justice v Hii Siew Cheng on the appropriate starting point for trafficking in over 1,000 grammes of ketamine that the Court of Appeal, having considered the right enhancement of starting point for trafficking in large quantities of other dangerous drugs such as heroin and ‘Ice’, made the observation that the appropriate starting point for trafficking in 2,000 grammes and 3,000 grammes of ketamine should respectively be no less than 18 years and 20 years.”
In HKSAR v Sin Chung Kin (above), the accused was charged with and pleaded guilty to unlawful trafficking in 3.36 kilogrammes of a powder containing 2.89 kilogrammes of ketamine. The sentencing judge in that case adopted a starting point of 19 years and 9 months’ imprisonment. There was another charge in that case, which is not, for present purposes, relevant. The Court of Appeal characterised the sentence imposed in that case as neither manifestly excessive, nor wrong in principle. For the purposes of the present sentencing exercise, the sentence in Sin Chung Kin, albeit for about 300 grammes less than the present quantity is of real practical relevance.
The accused travelled from Hong Kong to the mainland. She was only in the mainland for a matter of an hour or two when she was detected by customs officers carrying into Hong Kong the drugs the subject of the indictment. It has been recognised by the courts that carrying drugs across international, or, as in this case, intranational borders is an aggravating circumstance, see HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437, 2 HKC 197, #42-43. That approach has been followed in a multitude of cases, including HKSAR v Chung Ping Kun CACC 85/2014, HKSAR v Loua Cece CACC 328/2014 and HKSAR v Conde Nassou CACC 427/2014. The authorities suggest an enhancement ranging from a few months to over 2 years.
It is also of critical importance to examine matters which tend to mitigate the conduct of the accused. In that way, the court can attain the object of imposing a balanced sentence. The court was told of the following personal and family circumstances. The accused was 21 at the time of the offence. Prior to the offence, she was living with her mother and brother. Sadly, her father died about a year before the offence occurred. She was educated to Form 3 standard. She had been employed from time to time, but prior to the offence, was unemployed. The accused is not a drug-user. She committed the offence because of what has been characterised by her counsel as financial difficulties, and most importantly, the accused has a clear criminal record.
In the context of the unlawful trafficking of substantial quantities of dangerous drugs, family and personal circumstances almost always play little part in the assessment of the overall sentence. In HKSAR v Cherif Mohamed CACC 95/2015 #13, the Court of Appeal noted that it is well-established that family circumstances play virtually no part in the mitigation of drug offences. In that case, McCrae JA observed, and I quote:
“The dreadful nature of the illicit drug trade and the evil that suppliers of dangerous drugs inflict on others compel this policy decision.”
Plainly, some reduction is indicated in respect of two considerations. One, the plea of guilty and remorse demonstrated by the accused; and two, the assistance provided to the authorities by participating in what is commonly referred to as a controlled delivery. It is manifest that the plea of guilty by the accused and the expression of remorse must be recognised by a reduction from the starting point for sentence which might have been imposed after trial. The timing of the plea of guilty is of some relevance in the present case. The court was informed by the solicitors acting for the accused of the intention of the accused to plead guilty by a later date at 8 August 2016. That is just over a week before trial.
On present sentencing approaches, a discount of something of the order of one-third from the starting point after trial is appropriate. At first sight, this may seem generous given the late confirmation of plea, and, I would add, I accept that the accused is now deeply remorseful. While, in a perfect world, the decision to plead guilty could and should have been taken earlier, it sometimes takes a lot to face up to a person’s responsibilities. So, therefore, nevertheless, a discount of one-third will be applied.
The accused provided assistance to authorities by participating in a controlled delivery. As has already been noted, the person was arrested following that controlled delivery. At the time of the controlled delivery, the position of the accused was to deny that she knew that what she was carrying was a quantity of dangerous drugs. Indeed, not only had that been her position prior to the undertaking of the controlled delivery, but it was also her position in a video-recorded interview in the day after her arrest and participation in the controlled delivery.
That makes the assessment of any discount from sentence for assisting the authority something of a challenge, because it could not fairly be said that the accused participated no this process out of any sense of remorse. Given the many and varied circumstances in which controlled delivery might occur, it is not surprising that the courts have indicated that some discount for participation in such a process is indicated, but have not provided anything in the nature of guidelines providing an indication of quite how much discount might be appropriate.
In HKSAR v Nkwo Nnaemeka Darlington [2016] 1 HKLRD 692, the Court of Appeal held that there is no fixed percentage of identifiable range of percentage to be applied for such assistance. The Court said that the reason for this is because there is a wide range of circumstances which could apply in individual cases of assistance of this form. The Court said that these would include the nature and effect of voluntary participation; the outcome of the assistance, was it successful in bringing to justice persons who would not otherwise have been brought to justice; the degree and extent of assistance that has been provided and the degree of risk to which the accused has exposed himself or his family.
In the instanced case, the voluntary participation was undertaken with an express understanding that no benefit would derive from it. Further, the accused participated in a series of telephone contacts under the supervision of customs officers over a period of about three and a half hours. She then attended to the agreed delivery point in Kowloon Tong. Plainly, the assistance was substantial. It occurred over a significant period of time, with the accused pretending to communicate with what appears to be a variety of persons culminating with the delivery as arranged.
There is nothing to contradict the conclusion that the person arrested at the scene would not otherwise have been brought to justice. That counts heavily in the favour of the accused. There is no evidence of the degree of risk to which the accused exposed herself, that said, although it would appear that there were customs officers aplenty at the scene, experience demonstrates that things can so readily go wrong, despite customs officers being present, so it is reasonable to conclude that there was some risk to the accused even though it does not appear to have been a high risk venture. I should add that the arrested person was arrested, but on legal advice, there were no proceedings. That is not to be held against the accused. She did her best.
In HKSAR v Nkwo Nnaemeka Darlington, the Court of Appeal noted experience in previous cases of discounts for such assistance in the order of between 5 per cent and 7.3 per cent. While these percentages could not conceivably bind this court, they give something of the flavour of the approach of the court in past cases. I also would refer to the authority submitted by counsel for the accused Mr Lau, which is HKSAR v Gopal Muthusamy CACC 238/2010.
In my judgment, a discount of something of the order of 7 per cent would be appropriate, leading to an overall discount for the plea of guilty from a starting point of 40 per cent.
In this case, the accused went to the mainland, picked up 3.26 kilogrammes of ketamine, and carried it across the border to Hong Kong. The saving grace is, first, the accused then had the good sense to co-operate with authorities by participating in a controlled delivery, and second, has pleaded guilty, thus saving the community a significant degree of time and expense.
I have also read a heartfelt letter from the accused. On remand, she now recognises that her foolishness and the seriousness of what she has done. She regrets the impact of the offence on her mother and herself. She is deeply remorseful.
Nevertheless, it is a sad thing to be required to sentence somebody to a long period of imprisonment. However, that is the consequence of the important part played by the accused in the chain of supply of dangerous drugs such as ketamine.
I should also mark the obvious alertness of the officers of the Customs & Excise Service who detected the dangerous drugs in this case. Their conduct, taken together with the apparently successful controlled delivery exercise had meant that at least something over 3 kilogrammes of ketamine will not be poisoning members of the community of Hong Kong with all the terrible consequences that the ingestion of this substance can bring. I would respectfully ask that Counsel for the Prosecution indicate to the Commissioner of Customs & Excise that his officers have been involved in a very neat piece of law enforcement.
On the basis of sentencing guidelines, 3 kilogrammes of ketamine should attract a sentence of at least 20 years after trial. At this order of magnitude of sentence and quantity of dangerous drugs, sentences for amounts in excess of 3 kilogrammes cannot fairly attract a mechanical or purely arithmetic calculation as to how much more than 20 years would be appropriate. In my judgment, an appropriate sentence after trial for the unlawful trafficking of 3.26 kilogrammes of ketamine is 20.5 years.
The significant aggravating factor of the accused in this case was that the unlawful trafficking of the drug is the subject that which is the subject of the indictment occurred across the border between the mainland and Hong Kong. There is no exact science as to the quantum of sentence that should be added to the starting point, which I have indicated is appropriate for this case. I consider that the addition of 1.5 years by way of enhancement for this cross-border factor is appropriate in this case. That provides a total starting point of 22 years.
I have already indicated that an appropriate reduction for relevant mitigating factor, the plea of guilty to the indictment and the voluntary participation in a controlled delivery of the drug, which was the subject of the indictment, is of the order of 40 per cent. Applying that discount to a total starting point of 22 years is appropriately rounded down, a sentence of 13 years and 3 months, and that is the sentence of the court.