HKSAR v. Yim Shek Wo

HCCC 164/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 164 OF 2017

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

The accused was convicted after trial of trafficking in a dangerous drug, contrary to section 4 of the Dangerous Drugs Ordinance.

On 27 May 2016, he drove a Mercedes goods van from the Mainland into Hong Kong. He was stopped by a Customs Officer and the van was searched. A very large quantity of ketamine comprising 5.95 kilogrammes of a powder containing 3.01 kilogrammes of ketamine was found hidden in the spare wheel located underneath the vehicle. He made a series of admissions and those include that he knew what he carried was ketamine, that he carried the drugs on behalf of a friend and did so for a reward of $20,000. He says that he packed the drugs into the spare tyre himself.

It is clear that the jury must, by their verdict, have found that this was deliberate conduct for reward. In my judgment, the verdict of the jury was amply justified on the evidence in this case. In my judgment, the accused was rightly convicted.

He is a 38-year-old man, born in Hong Kong. He received education up to Form 3. He is a transport worker by occupation. His mother left the family when the accused was only five, and sadly, he has never seen her again. He was raised by his father, and sadly his father died some years ago. He was formerly married and was divorced in 2010. At the time of arrest, he lived in premises in Ngau Tau Kok with his girlfriend. He has a medical history of asthmas since childhood. I also accept from the evidence that he suffers from depression.

The accused has a criminal record. I do not propose to read out the whole of that record. That commenced when he was just 16 years of age or thereabouts. In 1999, he was convicted of robbery and sentenced to 40 months in prison. In 2011, he was convicted in the High Court in trafficking in dangerous drugs and received a sentence of 6 years.

Ketamine is a dangerous drug under section 2 of the Dangerous Drugs Ordinance and the first schedule to that Ordinance. The maximum penalty for unlawful trafficking in a dangerous drug is a fine of $5 million or life imprisonment, or both. The courts of Hong Kong have articulated a series of guidelines for the unlawful trafficking of dangerous drugs and, in particular, for the unlawful trafficking of ketamine.

On any view, the penalties revealed in those guidelines reflect the serious view that the courts take on behalf of the community of Hong Kong in relation to such conduct. That such a serious view is taken reflects, amongst other things, the real danger to an individual who takes ketamine and to the community who might have to deal with the consequences of those who take ketamine.

In the present case, one item of the video-recorded interview taken by officers of the Narcotics Bureau was a recognition by the accused of the nature of ketamine. In passages in that interview between counter 236 and 241, the accused recognised that ketamine would have a bad influence on the human body and would not produce a good state of mind. It is no criticism of the accused, but this is something of an understatement.

Although the accused trafficked in this drug even though he knew the -- its deleterious effects and although I was sorely tempted to do otherwise, I do not propose to regard this factor as a factor in aggravation of sentence. The danger to the individual who ingests ketamine was outlined in depressing detail by the Court of Appeal in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1. The sentencing guidelines for trafficking in ketamine which were outlined in that case reflect the consequences of the ingestion of ketamine. The sentencing guidelines provided in that decision included a guideline for trafficking on more than 1,000 grammes. The guideline is a sentence of imprisonment of 14 years or upwards.

In HKSAR v Sin Chung Kin [2013] 1 HKLRD 627, the Court of Appeal provided additional guidelines for cases involving the unlawful trafficking of more than 1,000 grammes of ketamine. The court held that the appropriate starting point for trafficking in 2,000 grammes and 3,000 grammes of ketamine should be no less than imprisonment for 18 and 20 years, respectively. Where more than 3,000 grammes of ketamine was involved, the starting point could exceed 20 years, although the increase in sentence should not be proportional to the increase in drug quantity.

Sentences for the unlawful trafficking in large quantities of ketamine were further considered in the Court of Appeal in HKSAR v Chow Yau Ching [2014] 2 HKLRD 639. In that case, the Court of Appeal reaffirmed its earlier decisions.

The drugs were carried across the border between Hong Kong and the Mainland. It has been recognised by the courts that carrying drugs across international or, in this case, intra-national borders is an aggravating circumstance. For this, see HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437, 2 HKC, #42-43.

On the basis of the sentencing guidelines, 3.01 kilogrammes of ketamine should attract a sentence of at least 20 years after trial. The significant aggravating factor of the conduct of the accused in this case was that the unlawful trafficking of the drug, which is the subject of the indictment, occurred across the border between the Mainland and Hong Kong. There is no exact science as to the quantum of sentence which should be added to the starting point, which is otherwise appropriate for the case. I consider that the addition of 1½ years by way of enhancement for this cross-border factor is appropriate in this case. That provides a total starting point appropriate to this case of 21.5 years.

Although the accused has had an unfortunate history in the past, and has had a serious -- and has a serious criminal record which includes trafficking in dangerous drugs, I see no basis for reducing the sentence of 21.5 years. The order of this court is that the accused is sentenced to 21.5 years.