HKSAR v. Leung Ka Po

HCCC 321/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 321 OF 2015

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

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COURT:

The defendant, Leung Ka-po, faced one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134. The defendant pleaded guilty before a magistrate and was committed to the Court of First Instance of the High Court for sentence.

Summary of Facts

On 11 January 2015, the private car on which the defendant was boarded was selected for customs clearance at the Shenzhen Bay Control Point.

A rucksack carried by the defendant was searched and 14 packets of suspected dangerous drugs which were later confirmed to be 3.42 kilogrammes of a powder containing 2.59 kilogrammes of ketamine with a street value of $430,020 were found inside the rucksack.

Under arrest and caution, the defendant claimed he did not know the nature of the dangerous drug but that he collected the dangerous drug in mainland China earlier that day. He was on his way to deliver the dangerous drug to someone for a reward of $4,000.

The defendant indicated he was willing to take part in a controlled delivery. The defendant received a number of calls and informed the caller he would wait at Exit A of the railway station at Kam Sheung Road.

During the controlled delivery on the same day, a 22-year-old male made contact with the defendant and this male was arrested after he took over the rucksack from the defendant.

Under caution, the defendant said he did not know the other male and he was instructed to pass the rucksack to someone who uttered the code “Yum cha”.

The defendant admitted he was trafficking in all the ketamine seized from him at the material time.

The defendant is now 24. He was 22 at the time of the offence. He has a clear record. He studied up to Form 7 and his family consists of his parents and one elder sister.

Mr McGowan, counsel for the defendant, gave me more details about the defendant’s background and why he had committed such a serious offence. Shortly stated, when the defendant was younger, his family situation was quite comfortable. However, when he was 12, his family faced financial difficulties and had to rely on social assistance, that is CSSA. The defendant was doing well in school. However, due to the family circumstances, he started doing part-time job when he was old enough to supplement the family income.

After he finished Form 7, he later developed a taste for gambling and ended up owing a gambling debt of $130,000 and he had to pay $8,000 to $9,000 per month on interest alone. When the family found out about this, his family members tried to help. The defendant realised how hard the family financial circumstances were and did not wish to burden his family, so he ended up committing this crime to get money.

Mr McGowan told me that the defendant is extremely remorseful. The defendant himself had indeed written to me, expressing his deep remorse. From letters written by the defendant’s parents, his elder sister, his aunt, his school teacher, his friends and his former supervisor at work, one can see that the defendant is a filial son and is basically a good person at heart.

The fact that he was caught trafficking dangerous drugs came as a shock to those who knew him. They believe the defendant was led astray by others and ask for leniency on his behalf. Mr McGowan also informed me that the defendant’s elder sister works as an accountant and through her encouragement and support, the defendant plans to enrol with the Open University to study accounting so that he could be of use to the society when he is released.

Mr McGowan emphasised the fact that the defendant pleaded guilty at an early stage and through his participation in the controlled delivery, another defendant was arrested. The defendant was willing to testify against the other defendant, although it turned out to be not necessary as that other defendant pleaded guilty before me. Mr McGowan submitted that the fact that this defendant was willing to give evidence must have played some part towards the plea of the other defendant and asked me to take that into account as well.

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

In the case 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 2.59 kilogrammes so it is within the band for over 1 kilogramme, with a starting point from 14 years upwards. In the case HKSAR v Sin Chung Kin [2013] 1 HKLRD 622, 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 the case HKSAR v Chow Yau Ching [2014] 2 HKLRD 639, 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 starting points for trafficking in large quantities of other dangerous drugs such as heroin and ‘Ice’, made the observation that the appropriate starting points 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 the sentence where there were other aggravating factors and a sentence where there were none.

Having considered all the circumstances of this case and the defendant’s background, I am of the view that an appropriate starting point is one of 18 years.

There is an international element involved in this case, see the case HKSAR v Abdallah [2009] 2 HKLRD 437 and HKSAR v Hong Chang Chi [2002] 1 HKLRD 486. Bearing in mind that ketamine is less harmful when compared with heroin or ‘Ice’, this case should not attract the same level of enhancement as indicated in Abdallah. I am of the view that an enhancement of 1 year is appropriate here. After enhancement, the starting point is one of 19 years.

The defendant took part in a controlled delivery which turned out to be fruitful. Not only the 22-year-old who collected the dangerous drug was arrested, a search of his premises yielded more dangerous drug. He was charged and he pleaded guilty before me in October 2016. That is the case HCCC 320/2015.

Having considered all the circumstances of the controlled delivery, I am satisfied that the defendant was truly co-operative and had done all that he could to assist. Bearing in mind that it is important to encourage arrested persons to render such assistance, a further discount is warranted. There are two cases in support, one is HKSAR v Gopal Muthusamy, CACC 238/2010, and another case is HKSAR v Jardin Rodela Maningas, CACC 278/2011.

With an enhanced starting point of 19 years, I am of the view that given the defendant’s early plea and the fact that his willing participation in the controlled delivery yielded very positive result, and upon consideration of further matters brought to my attention, I am of the view that a discount of 50 per cent is correct.

So for the offence of trafficking in a dangerous drug, the defendant is sentenced to 9 years and 6 months’ imprisonment.