HKSAR v. Wong Tsz Kin and Another

HCCC 427/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 427 OF 2016

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

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COURT: The two defendants pleaded guilty before a magistrate of one charge of trafficking in dangerous drug with which they were jointly charged and were committed together to the Court of First Instance for sentence.

In sentencing, I have taken into consideration the whole circumstances of the case including the nature and facts, in particular the type and quantity of the dangerous drug involved, background of the defendants and mitigation put forward on their behalf.

The facts of the case are simple. The two defendants were intercepted outside a public toilet. Each of them was carrying a paper bag. Inside the paper bag D1 was carrying, there were three plastic bags containing a total 736 grammes of a powder containing 416 grammes of ketamine. Inside the paper bag D2 was carrying, there were six plastic bags containing a total of 1.48 kilogrammes of a powder containing 683 grammes of ketamine.

Under caution, D1 said he had received $500 from others to help deliver ‘K Chai’ to others. D2 said similar things.

Then a search was conducted at a flat rented by D1. D2 possessed the key to the flat. Inside the flat, 38 plastic bags containing a total 8.895 kilogrammes of a powder containing 4.596 kilogrammes of ketamine were found. Also found were Ziploc bags, electronic weighing scales, sealing machines, spoons and a very small quantity of ketamine.

Under caution, D1 said the ‘K Chai’ were to be delivered to others. D2 said the drug was collected by her and her boyfriend and not yet delivered.

In a subsequent interview, D1 said he was recruited to deliver ketamine and was promised a reward of $500 for every 250 grammes of ketamine delivered. Having collected the dangerous drug, he and D2 took it to the flat and did some repackaging. They were intercepted when they were going to deliver nine packets of ketamine. He was to share $100 to $200 with D2 from each payment of his reward.

D2 admitted that she had collected the drug found in the flat with D1. D1 had told her it was ‘K’ and he promised her a daily reward of $500 if she delivered the ‘K’ with him. She had helped in weighing drugs before going out to deliver some packets.

D1 is 19 years of age. He was educated up to Form 4 and had worked as a delivery worker and in a salon. He is single and lived alone. This is the first time he committed the offence of trafficking in dangerous drug. The only previous convictions he had were two charges of dealing with goods to which the Dutiable Commodities Ordinance applies for which he was put on probation and eventually, upon breach of the order, sentenced to receive treatment in a detention centre.

D2 is now 16 years old and not yet at this age when she committed the offence. She completed Form 2 education and had worked as a waitress. She had been living with her parents. She did not have a criminal conviction record. She received superintendent’s discretion in 2013 for an incident of assault.

Learned counsel for D1, Ms Winnie Chu, informed the court that the mother of D1 deserted the family after his birth. After D1 had quitted school, he had taken up various jobs such as a salon trainee, warehouse assistant and delivery worker. Prior to the present incident, he was asked to take no-pay leave as business was slow in the logistics industry. It was in such tight financial situation and an urge to earn quick money that D1 was lured into the unlawful job. Ms Chu urged the court to take into account the guilty plea at the earliest opportunity and that D1 had made full and frank confession after arrest. She said D1 is in deep remorse and determined to turn over a new leaf.

Letters from D1, his father and stepmother and a friend of his stepmother were produced. D1 expressed his remorse and said he had reflected himself and is determined to equip himself to be a useful member of the society in the future. His parents said that D1 was a young man of good nature and expressed their regret for failing to give good guidance and care to him. The friend of the stepmother also speaks well of him and pleads leniency on his behalf.

Learned counsel for D2, Mr Leung, informed the court of the background of D2, stressing that she had been under undue influence of peers who were older than her by several years. Amongst the group of young people she mingled with was D1. She fell in love with him and became very devoted to him who played a dominant role between them. At the time of the offence, D2 was not yet aged 16, and as shown in the report, she was not mature. Owing to her low education, lack of life experience and devotion to D1, she could not resist his request to participate in this exercise.

Ms Leung also urged the court to take into account that D2 co-operated upon arrest, made full and frank confession and pleaded guilty also at the first opportunity, as well as the special circumstances, in particular the vulnerability of D2, and make a training centre order, and if not considered appropriate, impose a sentence as lenient as possible.

Letters of D2, her sister, a social worker and a pastor were produced. In her letter, D2 expressed remorse. Others speak well of her and pleaded leniency on her behalf.

The total narcotic content of the ketamine which the defendants trafficked in was 5.695 kilogrammes. In SJ v Hii Siew Cheng [2009] 1 HKLRD 1, the Court of Appeal held that in a case of trafficking in ketamine, if the narcotic content exceeds 1 kilogramme, a sentence of more than 14 years should be considered. In a subsequent case of HKSAR v Sin Chung Kin, CACC 458/2011, whilst the Court of Appeal did not intend to lay down tariff, it was held that if the narcotic content exceeded 3 kilogrammes, a sentence of more than 20 years should be considered.

In deciding the level of sentence, I bear in mind that the court should avoid simple arithmetic progression by reference to the quantity of dangerous drug involved, but quantity remains the primary consideration. Having regard to the quantity of dangerous drug and the role played by the defendants, I am of the view that a starting point of 21 years is called for to reflect the degree of seriousness of this case.

Against D1, there is an application for enhancement pursuant to section 56A of the Dangerous Drugs Ordinance on the ground that he had, with the prescribed mean engaged D2, a minor, in the offence. There was no objection from Ms Chu that the provision is applicable. She urged the court that the enhancement should be as low as possible, especially bearing in mind that D1 was only 19 years of age at the material time.

In the circumstances of the present case, having regard to HKSAR v Chan Ka Shing [2012] 2 HKLRD 220 and HKSAR v Ng Hon Keung [2012] 1 HKLRD 1017, in my judgment, the starting point for D1 should be enhanced by 3 years. The ultimate starting point I adopt for D1 is therefore 24 years. D1 pleaded guilty before a magistrate. For this, he is entitled to a one-third discount.

D2 also pleaded guilty before a magistrate. Learned counsel, Mr Leung, urged the court to take into account that D2 was still at the age of 15 when she committed the offence and having regard to the overall circumstances, not to impose an imprisonment term.

A training centre report was obtained upon request of counsel, with D2 having been advised that the court would not be obliged to follow the recommendation in the report and that if an imprisonment term is the most appropriate sentence in the whole of the circumstances, and most likely it would be, such sentence would be imposed.

D2 is considered mentally and physically fit for detention in a training centre and she is considered suitable for such detention. It was pointed out in the report that D2 was an underachiever in school and she had been mingling with desirable peers. Parents failed to give her proper guidance and control. She started to date D1 since 2013, knowing that he was a drug abuser. She maintained a close relationship with him despite disapproval of parents.

In Lam Pak Hung v R, CACC 724/1972, the court noted that it had been said time and time again that the courts cannot regard it as a matter of mitigation that a person is either very young or very old when he involved himself in trafficking in dangerous drug. This line of thought is still consistently maintained and a sentence with deterrent effect is considered necessary for this type of offence.

It has also been consistently held that in cases for trafficking in dangerous drug, only in the rarest of cases that the court would consider sentencing a young offender to a training centre, particularly when a substantial quantity of dangerous drug was involved. If authority is required, the Court of Appeal decision of SJ v Yau Sze Ho [1995-2000] HKCLRT 330 is one of them.

I am satisfied that D2 was matured enough to appreciate what she was doing and the consequence of her conduct. In my judgment, having regard to everything ably submitted by Mr Leung, even if D2 is accepted to be a girl of extreme youth, I do not consider the overall circumstances in this case justify to adopt the exceptional course of imposing a training centre order upon D2.

However, I am persuaded that D2 had been under great undue influence of D1 and for this reason, I will give her a further discount of 2 years on top of the one-third she is entitled to for her guilty plea, from the starting point of 21 years.

D1, Wong Tsz-kin, for the reasons I have mentioned, you are sentenced to an imprisonment term of 16 years. D2, Lai Hoi-kei, you are sentenced to an imprisonment term of 12 years.