HKSAR v. Ho Pak Hong

HCCC 244/2017 & 235/2018
(Consolidated)

[2019] HKCFI 1601

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NOS 244 OF 2017

AND 235 OF 2018

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

Defendant, you were convicted after trial by a jury of two offences of trafficking in dangerous drugs. Both offences were committed on 17 November 2016 at Ka Hay Building, No 19 Tseng Choi Street, Tuen Mun, New Territories.

Count 1 is charge against you solely and the location was at Room A3 on the 14th floor in that you trafficked in 1,654.3 grammes of a powder containing 426 grammes of ketamine.

In Count 2, the location was the 12th floor and you had trafficked, together with Cheung Chi-ho in 1 kilogramme of a powder containing 373 grammes of ketamine.

On the evidence in the trial, on 17 November 2016, whilst the police were on an anti-dangerous drug operation, they followed Cheung Chi-ho, a young male aged 15 years old when he left his house at Tai Hing Estate to Ka Hay Building in Tuen Mun. He was observed to enter Ka Hay Building empty-handed and shortly thereafter he left Ka Hay Building carrying a Watsons’ plastic bag.

He was then intercepted by police and inside the plastic bag there were four resealable transparent plastic bags containing the drugs, as stated in Count 2. He told the police officers that he obtained the drugs from inside Ka Hay Building from his boss who was later identified to be you, defendant.

He told the police that he did not know your name but showed the police the photograph of you on his mobile phone. The police then immediately went in search of you, waited outside Ka Hay Building and intercepted you when you exited Ka Hay Building a short time later. At that time they found on your person keys to Flat A, Room 3A on the 14th floor of Ka Hay Building. The police entered the flat and room using your keys and the drugs in the amount as stated in Charge 1 were found inside.

The tenancy of the room was in the name of your then girlfriend and it had only commenced some two days before the commission of this offence. From the evidence adduced at trial, you had rented this room for the purposes of storing drugs, without the knowledge of your girlfriend.

At trial, there was evidence of data extracted from your mobile phone and Cheung Chi-ho’s mobile phone, which showed the conversations that transpired between you both that day. Cheung Chi-ho gave evidence for the prosecution in this trial.

It was his evidence that on that day, he was to deliver these drugs for you to the places and persons as directed by you on two pieces of paper that was found inside the Watsons bag he was carrying. It was not in dispute in this trial that you had directed him to make these deliveries.

At the time of this offence you were 17 years old. Your girlfriend was 21 years old. There is no evidence that you knew that Cheung Chi-ho was 15 years of age, nevertheless, you knew he was a young male. You are now aged 19. You have two previous convictions, one of handling stolen goods and one of possession of dangerous drugs which was in 2016 and you were sentenced to the Drug Addiction Treatment Centre.

Mr Cheung, your counsel has mitigated on your behalf and asked this court not to consider an enhancement of too great an amount in view of the fact that Cheung Chi-ho was not much younger than you at the time of the commission of this offence as you were barely older than him. The fact is, defendant, you were the recruiter of this young male. You knew that he wanted to earn fast, quick money. You used him to do your deliveries for you. You gave him very large quantities to make these deliveries.

On the day in question, you had given him one kilo of powder in four separate bags of which he was to deliver these amounts in one trip in a taxi of which you had given him money for.

Although you were only some two years older than him, it is clear to me that you were very much more mature than Cheung Chi‑ho. I have observed Cheung Chi-ho give evidence and he is, even some three years later, he does not appear to be a very mature man.

Defendant, I am sure you are well aware that trafficking in dangerous drugs is a very serious offence and the Court of Appeal has laid down clear guideline tariffs for sentencing in trafficking in ketamine. The guidelines are set down in Hii Siew Chengand so far as this case is concerned, I do consider that there is an aggravating factor calling for enhancement of your sentence, as not only were you a recruiter, but you had recruited a young person.

Mr Cheung’s mitigation in that you must have used someone younger than you does not follow. Your girlfriend was older than you. You had peers older than you. In any event, the fact is you had recruited a young man.

Defendant, for the present two offences, I shall combine the two amounts of drugs in the 1st and 2nd Charge, arrive at a total term of imprisonment, enhance that total term because of the aggravating factor and then reflect that total term in the individual sentences I pass on each count.

Defendant, in Charge 1, you were trafficking in 426 grammes of ketamine. And in Charge 2, you were trafficking in 373 grammes of ketamine. For those two charges, the total is 799 grammes of ketamine. That falls within the bracket of 600 to 1,000 grammes and following the guidelines, that would attract a sentence of between 12 and 14 years.

For the amount of 799 grammes, defendant, you are sentenced after trial and the appropriate starting point should be one of 13 years.

As I mentioned, there is an aggravating factor in that you recruited a young person and that is clearly stated in the case of Abdallah, where Abdallah says, “The offender is shown to have engaged a young person to assist in the trafficking”.

For that aggravating factor, defendant, I enhance the starting point by one year. You shall be sentenced to 14 years’ imprisonment.

Defendant, I shall now sentence you individually for each count. On Charge 1, for the 426 grammes of ketamine, that falls within the bracket of 300 to 600 grammes of which a starting point of 9 to 12 years is appropriate. In Charge 1 you are sentenced to 10 years and 3 months’ imprisonment.

In Charge 2, the amount of drugs you were trafficking was 373 grammes of ketamine. This is the charge to which you had recruited Cheung Chi-ho. For 373 grammes, defendant, that warrants a starting point of 9 years and 6 months’ imprisonment. I enhance that sentence by one year and therefore, on Charge 2, you are sentenced to 10 years and 6 months’ imprisonment.

To reflect the total term of 14 years’ imprisonment, I order 3 years 6 months of Charge 1 to run consecutive to Charge 2 and the remaining terms concurrent.