HKSAR v. Kong Cheng Tse Wai

HCCC 344/2017
[2018] HKCFI 470

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 344 OF 2017

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

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COURT:

I do not propose to keep you in suspense. You are going to prison for 8 years and 8 months. Mr Woon will explain to you when you are likely to be released from prison, bearing in mind the length of time you have been in custody on remand and the rules we have about remission. He will explain that to you when I have left court.

The drugs which were found in your rucksack were all in plastic bags, and they were accompanied by paraphernalia used for weighing and packing them. But there is no direct evidence about where you were in the distribution chain. Certainly there is nothing to suggest that you were not doing what you told the police you had been doing, and that was taking the drugs to whoever was the next in line in the distribution chain.

You claimed to the police that you had never done this before. I am a little sceptical about that because it would have been very bad luck for you to have been caught the first time you acted as a courier in this way. But it has been known for drug traffickers to denounce their couriers to the police, if only because they think that that might get the police off their backs, and in the circumstances, I am going to proceed on the assumption that what you told the police was true.

You will have been told that the Court of Appeal has laid down guidelines for the appropriate sentence for people who traffic in drugs. The guidelines are based on the amount of the drugs involved, although the court does not look at the weight as a whole. It focuses on the narcotic content of the drugs. The weight of the narcotic content of the drugs in your case was about 277 grammes of ‘Ice’, about 36 grammes of ketamine and just over 2 grammes of cocaine. The guidelines say that the appropriate range for someone who is convicted of trafficking in between 70 and 300 grammes of ‘Ice’ is 11 to 15 years’ imprisonment. The appropriate range for someone who is convicted of trafficking in between 10 and 50 grammes of ketamine is 4 to 6 years’ imprisonment. And the appropriate range for someone who is convicted of trafficking in up to 10 grammes of cocaine is 2 to 5 years’ imprisonment. These are the appropriate ranges for someone who has been convicted after pleading not guilty. It goes without saying that your offences are far too serious for rehabilitation in a Drug Addiction Treatment Centre for a term of up to 12 months to be appropriate.

You are the classic small-time dealer in drugs contemplated by the guidelines, and there is no reason for departing from the guidelines in your case, though it would not be fair if I simply took the appropriate sentence for each of the drugs you were trafficking in and then aggregated that. The fairer and more realistic approach is to take the longest sentence which would have been passed for the drugs which you were trafficking in if you had to be sentenced just for them, in this case the ‘Ice’, and then to take into account the fact that you were trafficking in much smaller quantities of other drugs as well. Had I been sentencing you for trafficking in the ‘Ice’ alone, I would have taken 12½ years’ imprisonment as my starting point, balancing the fact that the quantity was close to the top of the range against the nature of your trafficking and the fact that you have never been in trouble with the police in Hong Kong before. I bear in mind that the Court of Appeal has said that trafficking in different kinds of drugs is an aggravating factor, but at the same time I must be careful not to sentence you twice over the same thing.

In the light of the relatively small quantity of ketamine and cocaine you had when compared with the quantity of ‘Ice’, and bearing in mind that the street value of the ketamine and the cocaine was only about $16,000 compared to the street value of the ‘Ice’ which was in the region of $94,000, I propose to take 13 years’ imprisonment as my starting point for all the drugs.

You are entitled to have your sentence reduced by one-third because of your plea of guilty on the return date when you were committed to the High Court for sentence; that means that the sentence which I pass for this offence of trafficking in dangerous drugs is 8 years and 8 months’ imprisonment.