HKSAR v. Cheung Ka Yee

HCCC 410/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 410 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, Cheung Ka-yee, was charged with one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134. He pleaded guilty before a magistrate and was committed to the Court of First Instance of the High Court for sentence.

The Admitted Facts disclosed that on 7 September 2010, anti-narcotic officers arrested one man surnamed Chow outside the Shangri-La hotel in Tsim Sha Tsui after he picked up a bag containing five packets of suspected dangerous drug which was later confirmed to be 1,495.7 grammes of a powder containing 1,131.27 grammes of ketamine with a street value of around $166,023.

Fingerprint examination conducted on the plastic bag and a sticky tape revealed impressions matching those of the defendant. Inquiries disclosed that the defendant left Hong Kong for Australia on 27 October 2010 and was subsequently imprisoned in Australia until he was deported to Hong Kong on 26 April 2016.

The defendant was arrested and under caution, he claimed he could not remember this case. Later, at a video-recorded interview, the defendant admitted his involvement.

Background and mitigation

The defendant is a 46-year-old single man, with a 26-year-old daughter born out of wedlock. He has appeared in court on seven previous occasions with a total of 16 convictions. Of these 16 convictions, five were for possession of dangerous drug and one was for trafficking in a dangerous drug and the trafficking of dangerous drug was in 2002. The defendant was sentenced to 8 months’ imprisonment.

Mr Tommy Ho, counsel for the defendant, informed me that the defendant had worked as transportation worker, decoration worker and a goldsmith trainee on part-time basis before. He could not make every day needs and at first relied on CSSA and later on family and friends. Due to financial hardship, he agreed to deliver drugs for someone to earn money. He recalled that he in fact received $2,000 for the delivery in this case. That is contrary to what he said during the video-recorded interview. And after this case, he then agreed to deliver dangerous drugs to Australia and was caught, resulting in imprisonment there. He served 5 years of the 9 years sentence and was released.

Mr Ho considered that the guideline leading case is Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1 is applicable here, but he urged me to adopt 14 years instead of an upward adjustment of 14 years. Mr Ho also asked me to take into account the fact that Chow, that is the man who picked up the packet outside Shangri-La hotel, was sentenced to 8½ years’ imprisonment for his part in the trafficking. Mr Ho submitted that the defendant’s aged mother of ill health still cares for the defendant, and the defendant has learned how to cook and to make coffee to prepare himself to start a new life when he is released.

Sentence

Trafficking in a dangerous drug is a serious offence. A person convicted on indictment is liable to a fine of $5 million and imprisonment for life. The quantity of ketamine involved in this case is over 1,000 grammes, 1,131.27 grammes. In Hii Siew Cheng, the Court of Appeal set down guidelines for the trafficking of ketamine. Trafficking over 1,000 grammes of ketamine, the appropriate starting point is from 14 years upwards. Having regard to all the circumstances of the offence, I am of the view that a starting point of 14 years is appropriate here.

I appreciate that Chow was sentenced to 8½ years’ imprisonment for his part. However, I do have any information on him here, say his previous record, his background and so on. I do not know why he appears to have a sentence lighter or shorter than what guideline says. I am not prepared to simply adopted the same sentence in the case of the defendant here. So the starting point is 14 years.

The defendant has previous drug related convictions in Hong Kong but I am not going to enhance the starting point for that reason. The defendant served 5 years of the 9 years imposed by Australian Court when he was deported back to Hong Kong. I make it clear that I do not take his sentence in Australia into account. In that, I do not enhance or reduce the starting point in relation to the defendant’s imprisonment in Australia.

The defendant had pleaded guilty at the earliest available opportunity and I will give him the full one-third discount. I appreciate the defendant’s intention to turn a new leaf as soon as possible and the care given by his mother, but I do not see those are grounds to further reduce his sentence.

So for the offence of trafficking in a dangerous drug, the defendant is sentenced to 9 years and 4 months’ imprisonment.