HKSAR v. Wong Man Kin and Another

HCCC 313/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 313 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 has pleaded guilty in the Magistrates’ Court to one count of trafficking in a dangerous drug, namely 705 grammes of a mixture containing 503 grammes of heroin hydrochloride. The 2nd defendant had pleaded guilty to the 2nd count of trafficking in 705 grammes of a mixture containing 503 grammes of heroin hydrochloride. Also, on the 3rd charge, the 1st defendant had pleaded guilty to trafficking in 9,860 grammes of a powder containing 5,780 grammes of ketamine.

The facts are that on 27 October 2015, during an anti-narcotics operation, the 1st defendant was seen walking towards a car parked in Fanling, with a suitcase. He took out a green backpack from the suitcase and placed both the backpack and the suitcase into the boot of the car and drove to the Kwai Chung Plaza in the New Territories.

Then the 1st defendant took out something from the boot and placed them into a brown paper bag and, carrying the paper bag, he entered Kwai Chung Plaza. Upon arriving at a restaurant, he sat at a table, spoke on the phone and shortly afterwards, the 2nd defendant arrived. After they had spoken, the 1st defendant passed the brown paper bag to the 2nd defendant and the 2nd defendant then stood up to leave.

The operation turned overt and both defendants were arrested. Upon a search of the brown paper bag, the contents were found to be the subject matter of the 1st and 2nd charges.

Under caution, the 1st defendant admitted that he gave two blocks of cocaine to another male on someone’s instructions. The 2nd defendant admitted that he was in need of money and he was told to deliver the drugs in return for $1,500.

A search was conducted of the 1st defendant’s car. Inside the car was found the ketamine which is the subject matter of the 3rd charge.

In the cautioned recorded interview, the 1st defendant gave an account of how he had met a person called “Yung Gor” and who asked him to take the drugs from the mainland to Hong Kong and that he would be expecting a reward of about $37,000. The 2nd defendant said that he had met someone called “Keung Jai” who offered to give him $1,500 to deliver the dangerous drugs.

As far as the street value is concerned, the estimated street value of the drugs the subject matter of the 1st and 2nd charges is in the region of $526,635, and for the ketamine is in the region of about $1,262,080.

The 1st defendant is aged 43 and I am told that he was a van driver and has two elderly parents. It was because he had financial difficulty that he agreed to participate in the transaction. The 1st defendant has a clear record and is married.

I am also informed that he had written a letter to the court in which he expressed deep remorse and that he had been given some religious assistance whilst in gaol and that has helped him. There were letters also from his parents. It is sad for a man of 43 to have to go to prison for a long time; however, hopefully he can use this time in prison constructively.

As for the 2nd defendant, he is aged 48 and he has previous convictions, some for other offences which has nothing to do with drugs. He has got one trafficking in dangerous drug conviction, it appears to be of a minor nature, for which he was sentenced to 16 months’ imprisonment. So he is facing the most serious offence so far.

In considering sentence, of course, the Court of Appeal had laid down guidelines. For ketamine, it would be in the case of Secretary of Justice v. Hii Siew Cheng [2008] 3 HKC323 and the guideline is that for 1,000 grammes of ketamine and up, it would merit a sentencing of 14 years and up. As for heroin, that is to follow the guidelines in R v.Lau Tak Ming and others [1991] LRC (Crim) 313 where for trafficking in between 400 to 600 grammes of heroin, a guideline sentence of 15 to 20 years’ imprisonment is recommended.

Dealing with the 1st defendant first, of course, in relation to Count 1, the amount of narcotic is 503 grammes of heroin. In Count 3 it is 5,780 grammes of ketamine. If added up, it would be about 6,283 grammes. If the whole amount is converted into ketamine, it would merit a maximum sentence of between 21 to 22 years’ starting point.

Looking at the facts in this case, in relation to Charge 1, for the 503 grammes of heroin, I would adopt a starting point of 17 years, plus 2 years for importation which would bring it to 19 years. And for the reasons I have given previously in the Sivan procedure, I would reduce that by about 40 per cent, so that would give us a sentence of 11 years and 4 months.

In relation to the 3rd count, the starting point for 5,780 grammes of ketamine would merit a sentence of 21 years plus 2 years for the importation and would become 23 years. Again, taking a 40 per cent reduction, would bring the sentence to 13 years and 9 months.

I have to consider the totality principle. It was obvious that this happened very close together, the possession of these drugs and on the same day at the same time, so in the circumstances, I would make both sentences concurrent. So the defendant goes to prison for 13 years and 9 months.

In relation to the 2nd defendant, he is trafficking in 503 grammes of heroin and, similarly, I would adopt a starting point of 17 years and giving him one-third off, he will therefore go to prison for 11 years and 4 months.

I/we certify that to the best of my/our ability and skill, the foregoing is a true transcript of the audio recording of the above proceedings .......................................... Tolaigus Wan Date: 29 November 2017