HKSAR v. Wu Yau Ming

HCCC 106/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 106 OF 2016

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

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COURT: Defendant, you have pleaded guilty to a charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance. You have admitted that on 1 November 2015, at the Shenzhen Bay Control Point, New Territories, in Hong Kong, you unlawfully trafficked in 1,978.05 grammes of a solid containing 1,644.83 grammes of ketamine.

On that day in question, you had departed Hong Kong at about 8 pm and returned to Hong Kong about three hours later, at about 2250. Upon entering and returning to Hong Kong, you went through the Green Channel at the Arrival Hall at the Shenzhen Bay Control Point. It was there that you were stopped by Customs for inspection and clearance. The Customs Officer carried out a baggage examination by X-ray with an ion scanner. The preliminary result was positive for drugs.

The officer then took you to another room for a further inspection. You had refused to put your baggage and articles on a table for examination and attempted to flee. You were stopped by Customs Officers but proceeded to assault them with your bare hands. In the course of the struggle, further reinforcement came and you were subdued and brought under control and handcuffed.

An examination of your brown waist bag revealed one packet of white powder. You said it was ketamine. Your body was searched and in each of the four pockets of your shorts, a plastic bag containing white powder was found. A further two small packets of white powder were found in a lighter in one of your pockets. The white powder was examined and was confirmed to be the amount of drugs as stated in the charge.

The estimated retail value of the drugs at the time was about $247,000.

Defendant, you are 29 years of age and have nine previous convictions. Five are related to dangerous drugs. Of those five, one is similar, that is for trafficking in dangerous drugs, for which a conviction was in 2011, now some six years ago. You are single, lived with your mother and elder sister prior to the commission of this offence. At that time, you were a delivery worker earning about $400 per day. You contributed $7,000 per month to your mother who was a housewife.

Your counsel, Mr Patrick Tam, submits that you committed this offence out of a momentary greed. At the time, you were facing financial difficulties and succumbed to the temptation of trafficking in dangerous drugs. You were instructed by a person called “Ah Ming” to deliver the drugs to Mong Kok and had you done so, you would have received $4,000 as a reward. You however had not yet received the reward.

Mr Tam has referred me to the relevant case of Hii Siew Cheng in sentencing tariffs for the drug ketamine. He also referred me to the authority of Abdallah Anwar Abbas regarding enhancement for the element of cross-border importation into Hong Kong. He has also referred me to the case of HKSAR v Chan Ka Yiu, HCCC 143/2015, where the court there, my learned brother, Zervos J, dealt with a defendant aged 26, dealing in 1,670 grammes of ketamine. In that case, Zervos J took 15 years as the starting point.

As I mentioned to Mr Tam, that is a decision by my learned brother which is not binding upon me. It is of significance to note that my learned brother, Zervos J, did mention the two cases which deal with large quantities of ketamine, which are HKSAR v Sin Chung Kin and HKSAR v Chow Yau Ching.

In Sin Chung Kin, the Court of Appeal stated that for large quantities of ketamine, that is for quantities of 2,000 grammes, an appropriate starting point should be no less than 18 years and for 3,000 grammes, a starting point of no less than 20 years. In Chow Yau Ching, the Court of Appeal considered those starting points in Sin Chung Kin and agreed with the analysis and said it was correct.

In accordance then with those sentencing guidelines, the appropriate starting point in this case for 1,644.33 grammes of ketamine should be 16 years and 6 months’ imprisonment. You had imported these drugs into Hong Kong; there is an international element, and for that amount of drugs involved, the enhancement, in following Abdallah, should be one of 2 years’ imprisonment.

That means the sentencing point, had you been convicted after trial, would be one of 18 years and 6 months’ imprisonment. You have pleaded guilty and therefore you are entitled to the one-third discount.

You shall be sentenced to 12 years and 4 months’ imprisonment.

I have not taken as an aggravating factor your one previous conviction as that was committed some six years ago.

I should have mentioned that in a recent case, the Court of Appeal confirmed that those were the correct guidelines to take for trafficking in large amounts of ketamine but the case number escapes me right now, but it was a decision that was an appeal from one of my own sentences. That case is Tse Wai Hei CACC253/2016.