HKSAR v. Ho Wing Yip and Another

HCCC 409/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 409 OF 2016

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

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COURT: The 1st defendant, Ho Wing-yip, and the 2nd defendant, Leung Kwok-yan, were jointly 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. That is the 1st count. The 1st defendant alone was charged with one further count of trafficking in a dangerous drug. They both pleaded guilty before a magistrate and were committed to the Court of First Instance of the High Court for sentence.

The facts admitted by both defendants disclose that on the day in question, a team of police officers were performing anti-narcotics duty in the vicinity of Ngau Tau Kok Lower Estate. The 1st defendant was spotted by the police to be carrying a blue rucksack and he hailed a taxi to go to Shek Kip Mei. He was followed. After he alighted and while standing in the street, the 2nd defendant approached him. After a chat, the 1st defendant took out a black plastic bag from his rucksack and passed it to the 2nd defendant.

After the 1st and 2nd defendants went their separate ways, each was followed by police officers and intercepted. Upon search, packets of suspected dangerous drugs were found inside the 1st defendant’s rucksack and inside the plastic bag carried by the 2nd defendant. Both defendants were arrested.

Under caution, the 1st defendant said he was delivering ‘K Chai’ for others to earn money. He asked for a chance. Under further caution, D1 said he delivered dangerous drugs to D2, the 2nd defendant.

The 2nd defendant, under caution, said he pulled dangerous drugs for others.

The suspected dangerous drugs found on both defendants were sent for analysis. They were confirmed as follows. From D1’s rucksack, 1,477 grammes of a powder containing 427 grammes of ketamine. From D2, 993 grammes of a powder containing 376 grammes of ketamine.

The total quantity of dangerous drugs involved was therefore 2,470 grammes of a powder containing 803 grammes of ketamine with an estimated street value of $333,450.

The 1st defendant attended a video-recorded interview later and disclosed how he came to know a male known as Ah Chun and agreed to deliver ‘K Chai’ for him. On the day in question, he was instructed to collect a paper bag from a flower bed, which he did. He was later instructed to deliver the drug which was eventually passed to D2. D1 was promised $500 for delivering each packet, but he had not been paid.

D2 similarly attended a video-recorded interview. He talked of acquainting a male called Ah Fat and he also agreed to deliver ketamine for this man, Ah Fat. On the day in question, he met up with D1 for a dangerous drug transaction as instructed by Ah Fat. He was promised $2,000 but he had not received any money yet.

Background and Mitigation of 1st Defendant

D1 is a 24-year-old single man. He has a clear record, completed Form 5 education. Mr Cheung, mitigating on behalf of the defendant, informed me that the defendant had worked as a lifeguard and later worked in a real estate office. He quitted the real estate job due to a slump in the market. His parents divorced when he was 2 and he only reunited with his mother 20 years later and lived with her. He had borrowed money from the bank and he was stupidly trying to earn quick money and agreed to traffic dangerous drug. He is remorseful now.

The defendant himself, his father, his uncle, his former supervisors at the real estate company and a pastor all wrote to me, seeking leniency on the defendant’s behalf. Mr Cheung submitted although the defendant faced two counts, there could be said to be one transaction. He asked me to consider all the circumstances and pass a lenient sentence on the 1st defendant.

D2

D2 is a 50-year-old single man. He is not a person with a clear record. He appeared in court six times and had eight criminal convictions. Of these eight convictions, one related to trafficking in a dangerous drug in year 2000 and he was sentenced to 20 months’ imprisonment. On the same occasion, he was also convicted of possession of dangerous drug and he was sentenced to 8 months’ imprisonment, both sentences to run concurrently.

Mr Luk, mitigating on his behalf, informed me that the defendant was a filial son who was responsible for all the household expenses, the medical expenses when his father was still alive and suffering from cancer, and the funeral expenses when his father passed away in March this year. The defendant did not want his siblings to be burdened so he shouldered all the responsibility himself. He had borrowed money from his friends and he wanted to repay the friends quickly, so he foolishly agreed to traffic dangerous drug. He is remorseful. D2’s siblings, colleagues of a café he used to work in, and his friends all wrote to me, asking for leniency.

Trafficking in a dangerous drug is a serious offence. A person convicted on indictment is liable to a fine of $5 million and to life imprisonment.

As for the 1st defendant, he was convicted of two counts of trafficking in a dangerous drug, that is Count 1 and Count 2. In the circumstances of the present case where both offences were committed on the same day and the facts were closely linked in that the dangerous drug in Count 1 were obviously connected with the dangerous drug in Count 2, a proper approach is to have regard to the total amount of dangerous drug in both counts to arrive at an overall starting point. See the cases HKSAR v Chow Yu Chi, CACC 359/2000, HKSAR v Cheung Kwok Leung [2003] 3 HKLRD 542 and HKSAR v Wong To [2001] 4 HKC 499.

The total quantity of ketamine involved in the case of the 1st defendant amounts to 803 grammes. In respect of D2, it is 376 grammes.

In the case of Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, the Court of Appeal set down guidelines for trafficking in ketamine. Trafficking 600 to 1,000 grammes of ketamine, the appropriate starting point is within the range of 12 to 14 years, whereas for the trafficking of 300 to 600 grammes, the appropriate starting point is between 9 to 12 years.

I accept that both defendants are remorseful and they have shown their remorse by promptly pleading guilty at the earliest available opportunity. After considering all the circumstances of this case, in the case of the 1st defendant, I am of the view that a starting point of 13 years is appropriate. For the 2nd defendant, a starting point of 10 years is appropriate.

Whilst the 1st defendant came from a broken family, I do not think his parents should blame themselves for what the 1st defendant had done. After all, the 1st defendant is already a 24-year-old adult and he must be responsible for his own actions and cannot blame anyone else. Apart from his plea, for which he will be given one-third discount, I do not find any other mitigating factor to reduce the sentence.

As for the 2nd defendant, I accept that he was a filial son and he had shouldered family responsibility. However, financial hardship does not amount to a mitigating factor for such a serious offence. Apart from his plea, which would also entitle him to a one-third discount, there are no other factors to further reduce the sentence.

For the 1st defendant, the 1st charge, the defendant is sentenced to 8 years 8 months’ imprisonment; the 2nd charge also 8 years 8 months’ imprisonment. Both sentences to run concurrently, making a total of 8 years 8 months’ imprisonment. That is two-thirds of 13 years.

The 2nd defendant, for the 1st charge, is sentenced to 6 years 8 months' imprisonment. That is two-thirds of 10 years.