HKSAR v. Cheng Kam Hei and Another

HCCC 319 & 465/2015
(Consolidated)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NOS 319 & 465 OF 2015

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

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COURT:

Both defendants, that is the 1st defendant Cheng Kam-hei and the 2nd defendant Chiu Kwok-ying, faced one count of conspiracy to traffic in a dangerous drug, that is the 1st count, contrary to sections 4(1)(a) and 4(3) and 39 of the Dangerous Drugs Ordinance, Chapter 134, and section 159A and 159C of the Crimes Ordinance, Chapter 200. D1 faces one extra count of trafficking in a dangerous drug, that is the 2nd count, contrary to section 4(1)(a) and (3) of the said Dangerous Drugs Ordinance.

D1 pleaded not guilty to the 1st count but guilty to the 2nd count. D2 pleaded guilty to the 1st count.

Upon admitting to the Summary of Facts, I found D1 guilty of the 2nd count and D2 guilty of the 1st count. The 1st count against the 1st defendant was left on the file and not to be proceeded with without the order the court.

Summary of Facts (in respect of D1)

On 5 March 2015, D1 made arrangements to meet up with Chan Kwok-wai, Gemini - I will call him “Chan” in future - at the Sheung Shui Railway Station for the purpose of delivering dangerous drugs. They met up and D1 gave Chan an empty rucksack to carry. Both left Hong Kong at Lo Wu and went to Shuiwei in the People's Republic of China, in the mainland.

At a restaurant, D1 had a telephone conversation with an unknown person and he left the restaurant. He later returned, carrying a brown plastic bag containing dangerous drug. He handed the package to Chan who then put it into the rucksack. They left the mainland together and returned to Hong Kong. Both were intercepted by the police when they were walking from the Lo Wu Control Point to the Lo Wu MTR Station. The rucksack carried by Chan was searched and the police found a brown plastic bag containing 18 packets of suspected dangerous drug inside the rucksack.

The suspected dangerous drug was later confirmed to be 4,431 grammes of a powder containing 2,741 grammes of ketamine with a street value of HK$522,858.

Upon arrest, D1 said he did not know that Chan was carrying dangerous drug. He reiterated the same during a later video-recorded interview. D1 admitted before me that he was trafficking in all the dangerous drugs seized.

Summary of Facts (in respect of D2)

The Admitted Facts disclosed that Chan met D2 at a games centre in early February 2015. Chan mentioned he was in urgent need of money and D2 asked Chan whether he would deliver ketamine from the mainland on D2’s behalf. Chan said he would think about it and they exchanged telephone numbers.

On 20 February 2015, when D2 called Chan, Chan agreed to deliver ketamine from the mainland to Hong Kong.

On 5 March 2015, pursuant to the agreement, D2 arranged for D1 to contact Chan to arrange for the transportation of dangerous drug. D1 arranged to meet Chan at the Sheung Shui Railway Station. Both left Hong Kong for the mainland and travelled to Shuiwei. D1 received dangerous drug from an unknown person. He then gave the dangerous drug to Chan who put them in a rucksack. The two then travelled back to Hong Kong via Lo Wu.

The arrangement was that the two would deliver the dangerous drug to D2 at a carpark close to the Sheung Shui Railway Station. D2 had promised Chan $6,000 for the delivery of the dangerous drug.

Both D1 and Chan were intercepted by the police and the rucksack carried by Chan was searched, yielding the dangerous drug already particularised with a street value of over HK$500,000.

D2 admitted before me that he conspired with Chan and D1 to traffic in a dangerous drug.

Background and mitigation

D1 is now 18 years of age. He was 17 at the time of the offence. He has no previous criminal conviction. In mitigation, his counsel Mr Victor Lee, informed me that the defendant used to live with his parents and two elder sisters before his detention. He was educated up to Form 3 level and had done different jobs including working in a warehouse owned by his aunt. He worked as a lorry attendant at the time of arrest.

Mr Lee submitted that the defendant did not have any monetary gain for the trafficking but rather he would be given treats of food and entertainment. Mr Lee asked me to take into consideration the defendant’s relative young age at the time of the offence and the age disparity between him and the other two persons involved in this matter, that is the 2nd defendant and Chan.

As to the legal principles, Mr Lee referred me to the case of HKSAR v Chow Yau Ching [2014] 2 HKLRD 639, in which I gave judgment for the Court of Appeal in a case of an appeal against sentence. Mr Lee relied on my judgment that the case of HKSAR v Sin Chung Kin did not lay down any sentencing guidelines but instead analysed and considered in detail the appropriate stating point. He also urged me to consider the judgment of Zervos J in HKSAR v Tsang Bing Him, HCCC 122/2015, and submitted that in sentencing this young defendant, I should not lose sight of considerations of rehabilitation and reform and to appropriately address such issues. Mr Lee urged me to adopt a lower starting point.

As for the issue of enhancement for the international element, Mr Lee submitted that ketamine is less potent or harmful when compared with heroin or ‘Ice’, so the enhancement should be less than that indicated in the case of HKSAR v Abdallah [2009] 2 HKLRD 437.

D1’s sister wrote to me. She described D1 being a person of good nature and a filial son with a steady job. The family never expected D1 to have committed this offence. Through communications with the 1st defendant while he was on bail, D1 now understands the wrong he had committed is inexcusable. D1 hopes to have a chance to redeem himself while bearing the punishment. He knows that he has to pay for what he has done and he wants to apologise to those close to him and to the society. He promised to work hard so that he could repay the society in the future. D1’s two sisters and their husbands are in court to give him support.

D2 is 33 years of age. He was born in the mainland and completed secondary Form 1 in Shenzhen. He has worked as an apprentice hairdresser and a waiter. He has been unemployed since 2013.

D2 does not have a clear record. He has five previous convictions, three of which are drug related. His last conviction was in March this year, 2016, for the offence of trafficking in a dangerous drug and he was sentenced to 12 years and 2 months’ imprisonment. Mr Fenton, D2’s counsel, informed me that the case upon which D2 was sentenced in March this year took place after the event of the present case. Mr Fenton referred me to the case of Chow Yau Ching to stress his submission that this court is not bound by the sentence of 19 years and 2 months in that case for a similar amount of ketamine.

Mr Fenton adopted the submission of Mr Lee in relation to the issue of enhancement. That is for the international element. Mr Fenton also relied on three authorities and submitted that this court should take D2’s current sentence of over 12 years into account when considering totality. The three cases are HKSAR v Wong Yung, CACC 156/1997, HKSAR v Suen Pan Hoi, HCMA 927/2000 and Attorney General v Au Kwok Chai [1996] 3 HKC 192.

Sentence

Trafficking and conspiracy to traffic in a dangerous drug are serious offences. Any person convicted of conspiracy to commit an offence of trafficking in a dangerous drug shall be liable to the penalty prescribed for that offence. Any person convicted on indictment of trafficking in a dangerous drug is liable to a fine of $5 million and to imprisonment for life.

In the case of Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, the Court of Appeal set down guidelines for the trafficking of ketamine. The ketamine involved here amounts to 2.741 kilogrammes so it is within the band of over 1 kilogramme with a starting point from 14 years upwards. In the case of HKSAR v Sin Chung Kin, CACC 458/2011, Yeung VP, giving judgment of the court, said at paragraph 27 of the judgment:

“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 is 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.”

In Chow Yau Ching, the Court of Appeal made it clear that Sin Chung Kin did not revise any sentencing guidelines but rather, having considered the rates of enhancement of the starting point for trafficking in large quantities of other 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.

The Court of Appeal also endorsed the view that there should be a meaningful distinction between the sentence for trafficking in a particular quantity of dangerous drug and trafficking in twice that quantity. There should also be a distinction between a sentence where there were other aggravating factors and a sentence where there were none.

In the case of D1, I bear in mind his relative young age and his previous clear record. I accept that he did not get any monetary reward for the trafficking but was given treats for food and entertainment. Having considered the 1st defendant’s background and the role he played, it does appear to me that D1 was a naïve young man who was made use of by others.

For the offence of trafficking in a dangerous drug, I am of the view that a starting point of 17 years is appropriate for this defendant. As the defendant trafficked ketamine into Hong Kong from the mainland, there is an international element in this case which warrants an enhancement (see the case of HKSAR v Abdallah [2009] 2 HKLRD 437 and the case of HKSAR v Hong Chang Chi [2002] 1 HKLRD 486).

I accept Mr Lee’s submission that ketamine is less harmful when compared with heroin or ‘Ice’, so should not attract the same level of enhancement as indicated in the case of Abdallah. I am of the view that an enhancement of 1 year is appropriate here. The defendant entered a timely plea and he is entitled to the full one-third discount. There are no other grounds to further reduce the sentence.

For the offence of trafficking in a dangerous drug, that is the 2nd count, D1 is sentenced to 12 years’ imprisonment.

D2 clearly recruited the other two, one of whom was only a youth of 17 at the time, to embark on the dangerous trafficking enterprise. He is not a man of clear record but since the conviction of the trafficking in a dangerous drug was based on matters which arose after the present case, I will not take that last conviction into account when I assess the starting point. Nevertheless, he is still not a man with a clear record before me.

Having considered the role played by the defendant, the defendant’s background and the amount of dangerous drug actually trafficked on 5 March 2015, I am of the view that a starting point of 20 years is appropriate. As the conspiracy involved cross-border importation of ketamine, I will also enhance the sentence by 1 more year. The defendant entered a timely plea and is entitled to the full one-third discount.

The sentence for the conspiracy to traffic in a dangerous drug, that is the 1st count, for the 2nd defendant, is one of 14 years’ imprisonment.

As the defendant is already serving a sentence of 12 years and 2 months, I need to consider the issue of totality. I am of the view that 4 years of the present case should run concurrently with the existing sentence, leaving a balance of 10 years’ imprisonment to run at the expiration of the existing sentence of 12 years and 2 months. Or put it another way, 10 years of the sentence of 14 years is to run consecutively to the sentence of 12 years and 2 months imposed on the defendant in March 2016.