HKSAR v. Ki Chun Pong

HCCC 412/2017

[2018] HKCFI 631

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 412 OF 2017

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

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COURT:

Defendant, on 6 November 2017, you pleaded guilty to a charge of conspiracy to manufacture a dangerous drug before a magistrate sitting at the Eastern Magistracy. You admitted that between a day unknown in December 2016 and 10 February 2017, you conspired together with a person known as Lam Chai to manufacture a dangerous drug, namely ketamine, in Hong Kong.

In the evening of 10 February 2017, the police executed a search warrant to raid Room 176, No. 36 North Tong Yan San Tsuen, Yuen Long. You were found in the bedroom, whilst two others were found in the living room. Upon search, the police found, in the bedroom, five plastic bags containing a solid. The plastic bags weighed each between 673 grammes to just over 1 kilo each. The total of the solid was 4,667 grammes.

A plastic bag containing 616 grammes of a solid containing 109 grammes of ketamine was also found. Also found was an electronic scale containing 0.07 grammes of a solid containing cocaine and ketamine, and 26 empty resealable plastic bags. You were in possession of the door keys of Room 176, cash of $9,120, and a mobile phone.

Upon arrest and caution, you told the officers that the ketamine belonged to you and Lam Chai and you were responsible to, I quote, “Farr” the ketamine. Meaning you were mixing the ketamine into fake ketamine to increase the profit.

The landlord of Room 176 stated that it was rented to someone named Ip Mun-lam since 26 April 2016. In your video-recorded interview, you stated, amongst other things, that Lam Chai was your friend named Ip Mun-lam, and that two to three months prior to February 2017, you and Lam Chai started to live together in Room 176.

Lam Chai had recruited you about one to two months ago to mix the ketamine and you were to receive monetary rewards from Lam Chai. You agreed to do this. You had adulterated the ketamine on three to four occasions acting upon Lam Chai’s instruction.

On the first occasion, you had with you three to four bags of ketamine each containing 600 to 800 grammes of ketamine. You took 200 grammes of ketamine out from each of the three to four bags of ketamine; you then refilled 200 grammes of salt, or MSG, into three to four bags of ketamine. By doing so you created an extra bag of ketamine for more profit. On this occasion, you were rewarded $7,000. On two other occasions, you were rewarded $4,000 and $7,500.

You informed the officers that the five bags of solid that was seized were ingredients which consisted of salt or MSG. The bag which contained the ketamine was a bag returned by one of your customers. You said that Lam Chai was responsible for getting the ingredients, and the electronic scale was for adulterating and weighing the ketamine.

In a second video-recorded interview, you were asked about WhatsApp records found in your mobile phone. It was there that you admitted that you and Lam Chai were trafficking in ketamine together, and that you were the one mainly responsible for adulterating and packing the ketamine and taking orders from customers, whilst Lam Chai was responsible for delivering the adulterated ketamine and sometimes getting the ingredients from Yuen Long for adulterating the ketamine. In February, the retail value of 606 grammes of solid containing 109 grammes of ketamine was $132,440.

Defendant, you are a young man aged 22. You have one previous conviction, which is not similar, in 2014, to which you were sentenced to probation for an offence of assault occasioning actual bodily harm. You have received education up to Form 3 level. You have, I am informed, been a drug dependant since 2017, and prior to your arrest you worked as a casual delivery worker earning an income of about $8,000 a month, which was not stable.

Ms Sabrina See, your counsel, has made very full and thorough mitigation on your behalf. The principal reason, I am informed, for you committing this offence, is because your girlfriend had borrowed money from a loan shark and in order to help her repay this debt, you asked your friends for help and ended up committing this offence for easy, quick money.

I have had submitted to me very heartfelt letters written by yourself to which you state you are very regretful and remorseful for your serious wrongdoing, and you plan to make amends to the community and rehabilitate yourself to learn more and train yourself whilst you are spending your time in prison so that when you are released, you will make a positive contribution to society.

Your mother, stepfather, aunt and your grandparents have all begged for your forgiveness. In short, they blame themselves for neglecting your supervision, and your mother, unfortunately, for spoiling you materialistically as she did not have sufficient time to look after you in view of her heavy work duty. They have all said that you are sorry that you have committed this offence, and that you were influenced by very bad people. They have asked this court to pass as lenient a sentence as I can upon you.

Ms See has mitigated; in respect of this offence, she says that this was a very simple or primitive manner of manufacturing. There was no special equipment required, save for a scale and some empty plastic bags. What you did, really, was just mix a solid, that is, the salt or the MSG, with the ketamine.

I do not agree with Ms See that this is a small-scale manufacturing case of dangerous drugs although I do agree that the manner of manufacturing was simple, as all you were required to do was to mix the solid with the ketamine. I have had submitted to me, by Ms Sabro Lo for the prosecution, two cases which are ­R v Cheung Wai Kwong & Anor [1997] 3 HKC at 496, and HKSAR v Ip Yuet Ho [2008] 6 HKC at 35.

And from Ms See, the case of HKSAR v Kam Kwong Fai [2009] 3 HKLRD at 584. These cases all concern cases of manufacturing dangerous drugs.

As stated in Cheung Wai Kwong, at page 501, paragraph F,
The court held that:

“It is clear for the offence of manufacturing of dangerous drugs, the quantity of drugs found is of course relevant but this is not the only factor to be taken into consideration. In deciding the proper sentence for such offence, the court should also consider the scale of the operation, the capacity of the equipment, whether the manufacturing station had been producing or is likely to produce substantial quantities of dangerous drugs and the role played by the accused.”

In the present case, as I have said, the equipment was basic; it was just a scale and plastic bags were needed. As for the scale of the operation, in my view, this must be considered a very large scale.

The quantity of drugs found in one bag was 109 grammes of ketamine in 616 grammes of solid. As to whether this manufacturing room had been producing or was likely to produce substantial quantities of dangerous drugs, I look at the amount of solid that was found. There were five bags of solid, that is salt or MSG, which amounted to 4,667 grammes. As we know from the defendant’s admission, this amount of solid was to be mixed with ketamine.

Further, from the defendant’s own admission, he had, on previous occasions, mixed the solid with ketamine. He has admitted, on the first occasion, he mixed three to four bags of ketamine each containing 600 to 800 grammes of ketamine. Taking this as the base of the drugs that had been manufactured, and with the amount of solid found on the date of the raid, it is clear to me that this was a very large-scale manufacturing of dangerous drugs in ketamine. On the defendant’s admission, on the very first occasion, taking an average of 700 grammes per bag and taking just three bags, that would equate to approximately 2,100 grammes of ketamine.

The amount of drugs involved is, of course, a guideline. And if I were to take this amount if the defendant had been trafficking in 2,100 grammes of ketamine alone, and following the case of Sin Chung Kin [2011] CACC 458, and confirmed in Chow Yau Ching [2012] CACC 517X, for trafficking alone in the amounts of approximately 2,000 grammes, that would attract a starting point of 18 years’ imprisonment.

Of course, as is clear from the authorities, manufacturing dangerous drugs is a much more serious offence than trafficking in dangerous drugs. On this basis I take as a starting point the 18 years’ imprisonment. I enhance that to a starting point of 20 years, taking into account that this is an offence of manufacturing dangerous drugs. Defendant, you have admitted the commission of this offence at the very first opportunity. Through your admission, you informed the police how much ketamine you had manufactured in previously. I give you full credit for your plea of guilty and discount that term by one-third, and you shall be sentenced to 13 years and 4 months’ imprisonment.