HKSAR v. Li Hung Kit

HCCC 368/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 368 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 admitted, on 7 February 2016, at the Customs Arrival Hall, Lok Ma Chau Control Point, New Territories, you unlawfully trafficked in 1,999 grammes of a solid containing 1,171 grammes of ketamine.

On that date, at about 1.30 am, customs officers at the green channel intercepted you as you entered Hong Kong from Mainland China. Upon search, customs officers found, stuffed between your jeans and front waist, a bag containing 170 grammes of a solid containing 101 grammes of ketamine. A further black plastic bag was stuffed between your jeans and the back of your waist. This bag contained 829 grammes of a solid containing 595 grammes of ketamine. A third bag was found stuffed in the front centre inside your jeans and this bag contained 1 kilogramme of a solid containing 475 grammes of ketamine.

The value of the ketamine seized at the time was estimated to be $255,872.

You had informed the customs that you were doing this for a promised reward of $5,000.

Your counsel, Mr Neil Mitchell, has, in his usual very eloquent and most prepared mitigation, mitigated on your behalf orally as well as submitted mitigation in writing in both his named part A and part B.

You are 31 years of age and are of clear record. Clearly, as Mr Mitchell has said, looking at the photographs and the method by which you transported these goods to Hong Kong, it does appear to have been a very amateurish operation with a high risk that you would be intercepted. The photographs, particularly Photo 1, show your jeans to be bulging at the left leg near the crotch. An experienced customs officer would of course have seen this and as Mr Mitchell said, it was very likely that you would have been detected, as you were. Mr Mitchell says the fact that you agreed to participate in this manner shows your degree of gullibility and stupidity.

In mitigation, it is said that you succumbed to the offer to make easy money. You have not received your reward as it was a promised reward. There are no other mitigating factors put forward on your behalf, save of course other than your plea of guilty.

It is accepted that this case was transferred for trial before the Court of Appeal decision in HKSAR v Ngo Van Nam, CACC 418/2014. Therefore, although this plea of guilty has been entered at a date originally fixed for pre-trial review, you are nevertheless still entitled to the full one-third discount for your plea of guilty.

The drug involved in this case was that of ketamine, the quantity of which was 1,171 grammes. The guideline case is that of Secretary for Justice v Hii Siew Cheng. For trafficking in this quantity amounts to a sentence of 14 years and upwards.

In this case, you had imported the drugs into Hong Kong from Mainland China, as a result of which the starting point should be enhanced, taking into account this aggravating factor. Mr Mitchell submitted that as it was ketamine, the upward adjustment for quantities should be less than that as stated in Abdallah Anwar Abbas.

Mr Bobby Cheung for the prosecution has helpfully submitted a case of HKSAR v Zhang Saiqiong, CACC 333/2011, where the Court of Appeal endorsed the fact that ketamine being a less potent drug than heroin, the Abdallah guidelines should not apply strictly for enhancement. In those circumstances, the enhancement should be adjusted to take into account that this importation of drugs is one of ketamine and not heroin.

Defendant, had you been convicted after trial, an appropriate sentence would have been one of 14 years’ imprisonment. For the term to which that starting point should be enhanced, I take into account the conversion test. That is, for 1,171 grammes of ketamine, 14 years’ imprisonment would equate to approximately 350 grammes of heroin. In following Chung Ping Kun, CACC 85/2014, the broad guideline for drugs below 1,000 grammes was suggested for the level of enhancement.

Therefore, for 350 grammes, I would enhance your sentence by one of 9 months’ imprisonment. Therefore, the sentencing point, had you been convicted after trial, would have been one of 14 years and 9 months’ imprisonment.

Giving you full credit for your plea of guilty, that term shall be reduced to one of 9 years and 10 months’ imprisonment to which you shall so serve.