HKSAR v. Yuen Pui Ying and Another

HCCC 88/2016
HCCC 89/2016
(Heard together)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NOS 88 AND 89 OF 2016

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

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COURT:

This is a case where both defendants were originally charged together in this offence. The 1st defendant was charged with one count of trafficking in a dangerous drug, namely 3,980 grammes of a powder containing 1,951 grammes of ketamine, and the 2nd defendant was charged with trafficking in the same amount of drugs and also he faces a second charge of trafficking in a dangerous drug, namely 3,980 grammes of a powder containing 1,868 grammes of ketamine.

The facts in this case were that police officers on an anti-narcotics operation had seen the 1st defendant arriving outside a female washroom in the Dragon Centre in Sham Shui Po, Kowloon. The 2nd defendant was seen approaching the 1st defendant and passing to her a black bag and this black recyclable bag was then taken by the 1st defendant into the female washroom and the 2nd defendant then left the scene. The 1st defendant then emerged from the washroom carrying the same black recyclable bag and upon the police intercepting the 1st defendant, inside the bag was found 16 resealable transparent plastic bags of ketamine which is the subject matter of the 1st count which I had earlier mentioned. That is the 1,951 grammes of ketamine.

Police officers kept watch on the 2nd defendant who, after passing the black recyclable bag to the 1st defendant, then boarded a taxi and went to Kai Tak Road, Kowloon City. He was then intercepted and upon a search of his rucksack, 10 resealable transparent plastic bags of ketamine, the subject matter of the 2nd count faced by the 2nd defendant, namely the drugs in that count, were found on the 2nd defendant, namely 1,868 grammes of ketamine.

Both defendants had been arrested and under caution, they had made admissions to the police officers. In relation to the 1st defendant, she admitted, under caution, that she had been offered a job to deliver ketamine and she accepted it and that on the day of the offence, she had been contacted by the 2nd defendant to arrange to meet her outside the toilet in the Dragon Centre. She then met up with the 2nd defendant who passed her the ketamine and she entered the toilet and counted the packets. After that, she got a text message from a person called Lok Ko, telling her to contact a person to whom the ketamine was to be delivered. So she called that person and she was going to go to To Kwa Wan when she was intercepted by the police.

The estimated street value of the ketamine found in the 1st defendant’s physical possession was in the sum of HK$513,420.

In relation to the 2nd defendant, he also, after arrest, admitted that he was recruited to deliver the ketamine in return for a reward of $5,000. He then gave an account about collecting the drugs and then he was informed by this person called Kit as to delivery. He first had to contact the 1st defendant to deliver to her the ketamine found in the 1st defendant’s possession and then he was tasked also to go to Kai Tak Road to make a second delivery of ketamine when he was intercepted by the police.

The estimated street value of the two lots of drugs that were found on the 1st and 2nd defendants were in the region of $1,026,840.

When the case was in the Magistrates Court on committal, the 2nd defendant pleaded guilty and therefore was committed to this court for sentencing. The 1st defendant only pleaded guilty later on when, in July of this year, her legal representative had contacted the Department of Justice to inform them that the 1st defendant was going to plead guilty.

As for mitigation in relation to the 1st defendant, it is noted that she was 17 years old at the time of the offence. She has a clear record and is remorseful. It is clear from the mitigation advanced on her behalf by Ms Moosdeen that her parents and family, in fact, are very concerned about her and very supportive of her. But as she herself pointed out, she is the designer of her own misfortune but she is lucky that she still retains the love and care and concern of her family.

In relation to the 2nd defendant, he was not yet 21 at the time of the offence. I am told that he was a decoration worker and apparently he had contributed to the living expenses of his mother and his two younger sisters who are still in school. His greatest mitigation is the fact that he pleaded guilty at the earliest opportunity. The letters from the defendant and his mother and Pastor Tam speak of the earlier abuse by his father, in that his father was prone to drinking and gambling and often beat the defendant. Whilst the court may be sympathetic to the fact that the defendant had a difficult childhood, nevertheless, it is not a mitigating factor when one weighs that into account against the seriousness of this type of offence.

As Ms Chan for the Department of Justice had submitted, the fact is that the 1st defendant was only 17 and considered a minor and, therefore, under the law, the 2nd defendant would have to face an enhancement of sentence in relation to the 1st charge he faces. Ms Chan very helpfully submitted the Court of Appeal case which is HKSAR v Ng Hon Keung [2012] Volume 1 HKLRD 1017, where the Court of Appeal stated very clearly about this enhancement of sentence under section 56A(1) and 56A(2) of the Dangerous Drugs Ordinance. The Court of Appeal pointed out in paragraph 10 of that report that:

“This provision was introduced in 1997 in response to the rapid increase in the number of young persons arrested for trafficking and manufacturing of dangerous drugs.”

As can be seen from that very case, the courts have taken into account this provision at various times over the years. In this case, Ms See very correctly had nothing to say in relation to the enhancement but only noted that as far as the facts were concerned, it would appear that it was not the 2nd defendant who actually engaged or employed the 1st defendant and, according to the facts in both the confessions of the 1st and 2nd defendants, it would appear they had only met that day outside the toilet. I do also cite the Court of Appeal in paragraph 15 where they said that:

“In our view, the provision under section 56A(2) will come into operation and the court can enhance a sentence if a minor is involved in the commission of the offence irrespective of whether the defendant knows that he is dealing with a minor or not.”

Anyone who deals with dangerous drugs will have to bear the consequence of receiving an enhanced sentence if a minor is involved in the offence. The Court of Appeal did not suggested the degree of enhancement as it was noted that the amount of enhancement will depend on the context of the case and, if the sentence is a lengthy one, a sense of proportion must also be considered.

In considering sentence, I have taken into account the guidelines as stated in the case of Hii Siew Cheng in 2009 where it was noted that over 1,000 grammes will merit a starting point sentence of over 14 years, and also the case of Sin Chung Kin in 2013 which suggested that for trafficking in 2,000 grammes of ketamine, it would merit no less than 18 years’ imprisonment as a starting point and for trafficking in 3,000 grammes of ketamine, that will call for a sentence of no less than 20 years’ imprisonment.

In relation to the 1st defendant, she faces one charge in which the drug is 3,980 grammes of a powder containing 1,951 grammes of ketamine. For that, I consider that a starting point would be 17 years’ imprisonment. Giving her the full one-third discount, that would reduce the sentence to 11 years and 4 months.

In relation to the 2nd defendant, the total drug of the two charges he faces is in the amount of 3,819 grammes of ketamine. I would consider therefore a reasonable starting point for that total amount would be in the region of 21 years’ imprisonment.

As the 2nd defendant faces two charges, I will sentence in this way. In relation to the 1st charge, the 1,951 grammes of ketamine, the starting point will be 17 years. He is entitled to the one-third discount so the sentence will be 11 years and 4 months plus a 1-year enhancement, bringing the sentence to 12 years and 4 months.

I am only giving 1-year enhancement because of the fact that it is clear, as I have earlier said, although he did not know the age of the 1st defendant, the 1st defendant was already 17 years old and less than a year when she would become 18. So in view of the fact that he had also only met her at the time of handing over the drugs, he was not responsible for her recruitment, so I therefore consider a 1-year enhancement to be appropriate.

For the 2nd charge, namely the 1,868 grammes of ketamine, I would adopt a 17 years’ starting point and giving the 2nd defendant one-third off, he would be sentenced to 11 years and 4 months on that charge.

I have to consider the totality principle, therefore, the 1st charge is 12 years 4 months and then the 2nd charge is 11 years 4 months, and 1 year 8 months of that will be consecutive to the sentence in the 1st charge and the rest will be concurrent, giving a total of 14 years’ imprisonment to the 2nd defendant.