HKSAR v. Lee Cheuk Hei

HCCC 299/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 299 OF 2015

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

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COURT: The defendant was convicted after trial of one count of trafficking in a dangerous drug. In sentencing, I have considered the whole circumstances of the case, including its nature and facts, in particular the type and quantity of the dangerous drug involved, background of the defendant and mitigation put forward on his behalf.

The facts of the case are simple. On 24 February 2015, the defendant was intercepted by Customs officers at the Arrival Hall of Lok Ma Chau Control Point. He was returning from the mainland to Hong Kong. He was carrying a backpack. When Customs officers checked the backpack, five packs of objects wrapped by towels and bandaged with adhesive tape were found. Upon check of the items, the dangerous drug as stated in the indictment was found inside each of the five packs of objects. It was 4,992 grammes of a powder containing 3,787 grammes of ketamine. The defendant denied he had knowledge of what he was carrying.

Under caution, the defendant said he was arranged to go to Shenzhen to collect the item, thinking that it was something illegal but not dangerous drugs, and bring it back and deliver it to Mong Kok. He was promised a reward of $3,000.

I was told that the defendant is 21 years of age. He came to Hong Kong in 2008 to join his mother and his stepfather. He quitted school after having studied for one month at Form 4. He had engaged in the following jobs: working in a McDonald’s restaurant, in a cyber café, decoration work, salesperson and some odd jobs. The defendant had no criminal record before.

Learned counsel for the defence, Ms Lee, urged me to be as lenient as possible, in particular as the defendant is still young. She asked me to take into account the background of the defendant, bearing in mind his low education level. She told me the mother of the defendant is very supportive and indeed she has been in court every day during the hearing. The stepfather of the defendant is not a particularly good person and is gambling all the time. The defendant’s relationship with the family was not good and he had left home to stay in a cyber café for some time before he committed this offence. It was in a desperate financial situation that the defendant was lured into taking up the task.

Ms Lee also urged me to accept that the defendant was only reckless and had turned a blind eye. This I cannot accept since it is contrary to the finding of the jury. However, I accept that there was a degree of exploitation in this case.

The dangerous drug the defendant trafficked in was ketamine. The total narcotic content was 3,787 grammes. The Court of Appeal held in the case SJ v Hii Siew Cheng [2009] 1 HKLRD 1 that a sentence of 14 years’ imprisonment and upward should be considered for trafficking in ketamine if the narcotic content is over 1,000 grammes. In all the circumstances, I do not find there are good grounds to depart from the tariff.

I have had regard to the case of HKSAR v Sin Chung Kin, CACC 458/2011, in which the Court of Appeal suggested that if the narcotic content is more than 3,000 grammes, a starting point of more than 20 years should be considered. I have also had regard to HKSAR v Chow Yau Ching [2014] 3 HKLRD 639 which Ms Lee had drawn to my attention. I also bear in mind the case HKSAR v Leung Wai Man, CACC 24/2007, in which the Court of Appeal stressed that a sentencing court should avoid using arithmetical progression in sentencing. Instead, the court should exercise its discretion according to the circumstances of the case.

The defendant brought the dangerous drug from the mainland to Hong Kong. This is an aggravating factor for which the starting point should be enhanced by 2 years.

In all the circumstances, it is my judgment that an ultimate starting point of 22½ years is appropriate and sufficient.

I have considered the whole circumstances including what Ms Lee has said on your behalf. In my judgment, there is little justification to give you any discount. By reason of all I have said, I sentence you to an imprisonment term of 22½ years.