HKSAR v. Ling Kwok Leung

HCCC 344/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 344 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 had pleaded guilty in the Magistrates’ Court to one count of trafficking in a dangerous drug, namely, 1,002 grammes of a powder containing 702 grammes of ketamine and 10 tablets containing a total of 0.06 grammes of methamphetamine.

The summary of facts are not unusual, in that on the morning of 26 January this year, he was intercepted when he was entering Hong Kong at the Lo Wu Control Point and a search of him revealed that he was carrying the drugs which is the subject matter of the charge, and those drugs were ketamine, specifically, and were put into a black plastic bag and hidden between the back of the accused’s waist and his jeans, and, as for the 10 tablets of methamphetamine, that was found in a resealable plastic bag inside the defendant’s right front jeans small pocket.

When asked what the ketamine was, the defendant replied that it was “Ice”, a dangerous drug, and, under caution, he admitted that he was given this “Ice” in Shenzhen and he was to take it to Hong Kong for $4,000 reward, and when the tablets of methamphetamine were discovered, he said that those were samples.

The seized drugs were examined and later determined to have a total retail value of over HK$130,000, and the methamphetamine tablets was $18.42.

His interview on video did not really advance the information any further. The defendant maintained that he was given these drugs by someone called “Fat Guy” in Shenzhen, who promised him a reward of $4,000 and eventually agreed to give the defendant an extra $1,000 to $2,000 on the successful completion of his mission.

Now, at the time of the defendant’s arrest, he had with him two mobile phones and some Hong Kong dollars and Renminbi dollars.

Now, the defendant is aged 60 and has nine previous convictions, only one of which is drug related. His last conviction was in 1995 and it was for possession of dangerous drugs, for which he was fined. The previous eight other conviction record was in relation to the Trade Descriptions Ordinance.

The defendant claimed that he resides in the Mainland and had been a parallel goods importer prior to his arrest, but he had been unemployed for about three months leading up to his arrest.

Mr Leung is correct in pointing out that the defendant believed, according to what he told the Customs officers, that he was carrying “Ice” when, in reality, most of the drugs were ketamine and only the small packet in his trouser pocket was “Ice”, which the defendant said, under caution, that it was a sample.

And Mr Leung correctly drew my attention to the case of Yip Wai Yin, HKSAR v Yip Wai Yin & Anor in 2004, where the Court of Appeal did consider this matter of mistaken belief in the nature of drugs, but that case was actually different, in that the appellant in that case believed that the drugs he was carrying was of a lesser potency than the ones that he was actually carrying, and the Court of Appeal considered that and decided that, in all the circumstances, that the appellant should get appropriate reduction of 1 year, in light of his belief.

Now, in our case, the defendant said he believed the drugs were more potent than what he was actually carrying, so it is open to this court to consider whether the sentence should be increased because of his mistaken belief.

Mr Leung had also referred me to a subsequent case, where the Court of Appeal had also considered this, and this was the case of HKSAR v Li Chi Hung & Ors, CACC 18/2002, and in paragraph 47, the Court of Appeal said that:

“...the criminality of the mental state of an accused is(a?) very important aspect in sentencing, besides his act of supplying a dangerous drug” and “His culpability and therefore punishment would need fairly be related to both his mental state and his conduct. However...”

The Court of Appeal went on to say.

“...in a case of drug-trafficking, the kind of the drug actually involved in the trafficking should have a more weighty bearing than the mental element, just as the tariffs of sentence for drug-related offences hinge more on the quantity of the drug involved.”

And, in this case, the defendant, in fact, had admitted to a more serious drug he thought he was carrying than what he was actually carrying, and perhaps this is more an indication of his remorse than anything else. So, in light of that, I will not enhance the sentence in any way on the ground of his mental element.

He is a man who is aged 60 and his last conviction was in 1995, and there is not any mitigation, in fact, in this case, apart from that he had chosen to plead guilty at the earliest opportunity, which is a sign of his remorse, and, as I have also said, the fact that he had been honest with the Customs officers is also a sign of his remorse. So he is entitled to the full one-third discount.

Now, as for the starting point, as we all know in the case of Hii Siew Cheng in 2009, the Court of Appeal had recommended that, for trafficking in between 600 to 1,000 grammes of ketamine, it should merit a sentence after trial of 12 to 14 years, and I consider that the total amount of drugs is actually 702.06 and part of that is 0.06 grammes of methamphetamine.

I have decided that the 0.06 grammes of methamphetamine is of such a small quantity that I will not separately consider that and instead will add it on to the larger amount of ketamine that were found.

So, in all, the total amount is 702.06, so I determine a starting point sentence of 12½ years would be appropriate.

Now, as for the aggravating factor of cross-border importation, I consider that an appropriate sentence in addition to that 12½ years would be 1 year, to take into account the aggravating factor, thus giving us a total of 13½ years.

Giving the defendant a full one-third discount, he is therefore sentenced to 9 years’ imprisonment.