HKSAR v. Leung Chi Wai

HCCC 429/2017

[2018] HKCFI 634

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 429 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 20 November 2017, you pleaded guilty to two charges of trafficking in dangerous drugs before a magistrate sitting at the Eastern Magistracy. As a result of your plea of guilty you were committed here to the Court of First Instance for sentence. Both charges of trafficking in dangerous drugs were committed on 13 April 2017, at Shing Wo House, Kwai Shing East Estate, Kwai Chung, New Territories.

In respect of the 1st charge, that was committed just outside Shing Wo House, to which you unlawfully trafficked in 63.70 grammes of a powder containing 46.60 grammes of ketamine.

In respect of the 2nd charge, that was committed inside Room 1028, and you had unlawfully trafficked in 30.43 grammes of a crystalline solid containing 28.38 grammes of methamphetamine hydrochloride, and 233.89 grammes of a powder containing 168.62 grammes of ketamine.

On 13 April 2017 at about 5.13 pm, police officers were conducting an anti-dangerous drug operation near Shing Wo House, Kwai Shing Estate; at that time they intercepted you. You were asked what you were doing and you said you were waiting for someone. You told the officers that you lived at Room 1028 Shing Wo House. At that time you were holding a plastic bag in your right hand. Having searched the plastic bag, the police officers found 22 plastic bags containing a further 22 bags of the drug ketamine in the amount as stated in the 1st charge. You were arrested, and under caution you said, “Only because I need money, I receive $3,000 from Ah Fai for conveying the K chai to someone else. Give me a chance.” At that time, you had a mobile phone and HK$6,030 and RMB470 found on your person.

You were then taken to your residence at room 1028. The police gained access to the flat by using keys seized from your person. Inside a plastic box under the bed inside one of the bedrooms police officers found the drugs as stated in Charge 2. There was also found a stack of empty transparent re-sealable plastic bags, a bunch of pink plastic bags, two spoons, two electronic scales and a dehumidifier. There were, altogether, 38 plastic bags containing the drugs and a further plastic bag containing 111 grammes of a powder which did not contain any dangerous drugs. You told the officers “The stuff is mine.” Again, you were arrested and cautioned, after which you said, “Only because I need money, I placed the Ice and K chai here. I would take away soon. All my family members do not know about it.”

In your video-recorded interview, under caution, you stated that you became acquainted with this male named Ah Fai at a pub. Ah Fai asked you if you wanted to earn quick money. You gave your contact number to him as you needed the money. Later, you received a call from Ah Fai who instructed you to go to a park next to Kwai Hing MTR to collect the two pink plastic bags, of which you did so. You knew that inside those plastic bags were drugs. You then returned home with the drugs and placed the drugs in the plastic box in your bedroom.

You later received a call from Ah Fai who instructed you to deliver some of the ketamine to an unknown person. You therefore took one plastic bag containing the ketamine and left your home but you were intercepted by the police officers. You had not received the reward you were promised of $3,000. The cash seized from you were your wages and “red-pocket” money. You had a drug habit and you would take Ice once or twice a week. You were unemployed for a few months and had a debt of around $70,000 to $80,000. You had previously worked as an electrician at an electric power station earning around $16,000 to $18,000 a month.

In April 2017 it is admitted the estimated retail value of the seized ketamine was $64,875 and the estimated retail value of the seized methamphetamine hydrochloride, commonly known as “Ice”, was $8,703. The total value of drugs therefore was $73,578.

Defendant, you are 22 years of age. You have four previous convictions, none of those are drug related. You have never been sentenced to imprisonment before. You have Form 5 level education, and had worked at the electric power station earning $16,000 to $18,000 a month. Prior to the commission of this offence, you had been taking Ice for approximately a year, and would take Ice about twice a week. The reason for committing this office was as a result of the large debt you had incurred of between $70,000 to $80,000 and the temptation to earn quick, fast money.

You have written a short letter of mitigation to this court, saying that during your remand at Lai Chi Kok you have given deep thought to your past misdeeds and understand how wrong you were. You have said that during your time in prison you will take the opportunity to study and not waste your time. After being released from prison, you wish to re-establish yourself in society and avoid the hurt caused to your parents.

Mr Kenny Chan, your counsel, has mitigated on your behalf, and the strongest mitigating factor is of course your early plea of guilty. He has submitted to me a written skeleton submission in mitigation as to the various sentencing approaches to be taken. I accept Mr Chan’s mitigation that for these two offences to which there are two types of drugs involved, that a combined approach and converting ketamine to Ice is the appropriate formula for sentence in this case.

Defendant, I shall first of all look at the end sentence, that is consider the principle of totality in respect of these two charges, and then I shall sentence you individually for each offence.

In the two charges, defendant, the 1st charge involved ketamine in the amount of 46.60 grammes. In the 2nd charge, the drugs involved were 28.38 grammes of Ice and 168.62 grammes of ketamine. First of all, I would take the combined ketamine of the two charges, that is, in Charge 1, 46.60 grammes of ketamine, plus 168.62 grammes of ketamine in Charge 2, would make a total amount of ketamine of 215.22 grammes of ketamine.

In following Hii Siew Cheng, for that amount of ketamine, had you been convicted after trial an appropriate sentence would be one of 8 years’ imprisonment. In converting that amount of ketamine to Ice, that would equate to 25 grammes of Ice. There is a further 28.38 grammes of Ice in Charge 2, and therefore in adding these two amounts, would make a total amount of 53.38 grammes of Ice, for both Charges 1 and 2. Taking that amount as a starting point on the principle of totality, and following the authority of Tam Yi Chun, the appropriate starting point for 53.38 grammes of Ice, had you been convicted after trial would be one of 9 years and 9 months’ imprisonment.

Defendant, you had pleaded guilty at the earliest opportunity and therefore you are entitled to the full one-third discount, and you shall therefore be sentenced to six years and six months’ imprisonment.

I shall now sentence you individually for each offence. For Charge 1, 46.60 grammes of ketamine, an appropriate starting point, after trial, would be one of 5 years and 9 months’ imprisonment. Giving you full credit for your plea of guilty and discounting that term by one-third, the resulting sentence on Charge 1 will be 3 years and 10 months’ imprisonment.

Turning to Charge 2, I shall convert the ketamine in Charge 2 to that of Ice. 168.62 grammes of ketamine would attract a starting point of 7 years and 3 months’ imprisonment, after trial. In converting that amount of ketamine to Ice, that would be equivalent to 15 grammes of Ice. I will therefore add 15 grammes of Ice to the 28.38 grammes of Ice in Charge 2, which makes a total of 43.38 grammes of Ice. In following Tam Yi Chun, as a starting point after trial, that would attract a term of 9 years’ imprisonment. As you are entitled to a one-third deduction for your plea of guilty, that results in six years’ imprisonment for Charge 2.

To reflect the overall totality of six years and six months’ imprisonment, I order six months of Charge 1 to run consecutive to Charge 2 and the remaining term to run concurrent to Charge 2.