HKSAR v. Tse Wai Hei

HCCC 272/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 272 OF 2015

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: Defendant, you have pleaded guilty to a charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance.

You admitted that on 20 January 2015, at the male toilet near exit J, Yuen Long MTR Station in Yuen Long, you unlawfully trafficked in 2,962 grammes of a solid, containing 1,798 grammes of ketamine.

On 20 January 2015, a team of customs officers, in plain clothes, were conducting an anti-narcotics operation in the Yuen Long area. At around 1155 hours, they saw you acting suspiciously outside the male toilet near exit J of the Yuen Long MTR station. You entered the toilet and were followed by customs officers. Whilst in the toilet area, the customs officers intercepted you for a search.

Found inside a plastic bag, inside the black rucksack you were carrying at that time, were the drugs as stated in the charge. Upon questioning by the customs officers, you told the officers the white powder in the rucksack was “K chai” for delivering to people and you would be paid $1000 a day. The estimated street value of the dangerous drugs, at that time, was $373,212.

Defendant, you are 18 years of age today, at the time of commission of this offence you were 17. You have two previous convictions, for robbery and common assault in 2013 when you were 15. You were sentenced to detention centre.

Your counsel, Mr Chan Siu-ming, informs me that after you were released from detention centre, you were unable to find employment, and in view of your financial constraints, you turned to earning quick money to earn $1000 a day. I am informed that you have been brought up by your grandparents, as you were forsaken by your parents. You had only received education up to Form 3, and due to lack of parental care you have been influenced by your bad peers and hence committed the offences to which you were sentenced to detention centre.

I am told that your grandfather is bedridden at home with nasopharyngeal cancer and your grandmother suffers from hypertension, and I believe she is here today supporting you. Whilst you may have been trying your best to assist them in their financial constraints, of course you would have realised that the offence to which you were committing, that is, delivering drugs, is a very serious one.

Mr Chan submits that you will now turn a new leaf and continue your education whilst in prison. Your plea of guilty shows your deep remorse. Mr Chan has submitted to me two cases for my consideration, that is the case of CACC 517/2012 HKSAR v Chow Yau Ching and CACC 42/2015. He asked me to impose a similar sentence to that in CACC 42 as the Court of First Instance had done so.

The tariffs for sentencing in trafficking in ketamine was laid down in Secretary for Justice v Hii Siew Cheng. The guidelines were that for over 1,000 grammes of ketamine, a sentence of 14 years and upwards would be imposed as a starting point after trial. As can be seen in this case, the quantity is larger than that of 1,000 grammes. For those large quantities of ketamine, I refer to the case of Sin Chung Kin CACC 458/2011.

This case was in fact reflected and mentioned in the case, as referred to by Mr Chan, in CACC 517 of Chow Yau Ching. I refer to paragraph 27 of Sin Chung Kin, where the court stated as guidance, the following:

“The longest sentence in the guidelines laid down in Hii Siew Cheng, is 14 years’ imprisonment for trafficking in 1,000 grammes of ketamine. However, if one follows the rate of enhancement of sentences as apparent from Lau Tak Ming and Ching Kwok Hung, then for trafficking in 2,000 grammes and 3,000 grammes of ketamine, which respectively doubles and triples the 1,000 grammes, which attracts 14 years’ imprisonment, the appropriate starting points should respectively be no less than 18 years and 20 years”.

As stated in Chow Yau Ching at paragraph 22;

“Sin Chung Kin did not lay down any sentencing guideline, but instead analysed and considered in detail the appropriate starting points. It was certainly open to the judge to consider the reasoning in Sin Chung Kin even though the applicant’s case...”

I will stop there. In taking the guidelines then, from Sin Ching Kin, for 1,000 grammes it would be 14 years and upwards, for 2,000 grammes it would 18 years and for 3,000 grammes it would be 20 years. In this case, defendant, you were trafficking in 1,798 grammes of ketamine. Taking those years as starting points, I consider the appropriate starting point in your case to be one of 17 years’ imprisonment.

Defendant, you have pleaded guilty, you shall be afforded the usual one-third discount and you shall be sentenced to 11 years and 4 months’ imprisonment.