HKSAR v. Kwok Tsan Ho and Another

HCCC 90/2018

[2019] HKCFI 2649

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 90 OF 2018

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

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COURT:

At about 1 pm on 18 March 2017, officers of the Customs and Excise service intercepted Kwok Tsan-ho with another person, Ng Ka-kit, in what is described as the residential platform of Block 3, Phase 2, Metro City in Tseung Kwan O.

The officers who searched Mr Kwok at the residential platform found a total of 2,991 grammes of a crystalline solid containing 2,874 grammes of methamphetamine hydrochloride in a recycle bag that he was holding. No drugs were found on the other man. Both Mr Kwok and Mr Ng were taken to other premises where over 4.8 kilograms of ‘Ice’ was found.

Both Mr Kwok and Mr Ng went before the Magistrates’ Court where Mr Kwok faced a charge of trafficking in dangerous drugs based on the amount of methamphetamine hydrochloride found at the residential platform following the interception of him and Mr Ng at that place.

Mr Kwok pleaded guilty to the charge levelled against him and was committed for sentence to this court by the magistrate. He admitted a Summary of Facts and the admission of those facts together with the plea of guilty before the magistrate is an admission to the fact that he was trafficking in the methamphetamine hydrochloride, the ‘Ice’, in the charge relating to the area known as the residential platform.

He now falls to be sentenced by this court. He can only be sentenced on the facts agreed by him and on the basis of the testimony in the trial which has just concluded of Mr Ng. His testimony did not add a great deal for the Summary of Facts and mainly provided an explanation for how he came to be carrying the drugs, the subject of this charge. He told the court in the trial of Mr Ng that he carried the drugs at the behest of a person he named as Ah Shing for a reward of $20,000.

During the trial that has just occurred, it is probably more pertinent to make the point that during the course of that during which he gave evidence, Mr Kwok made admissions that from a date unknown in early February until 18 March 2017 (the date upon which he was intercepted) that he had conspired with Ah Shing to traffic in dangerous drugs by acquiring premises for Ah Shing and possibly his associates to store and pack drugs.

Alternatively, to the conspiracy, Mr Kwok might have been guilty of aiding and abetting the storage of the drugs for unlawful trafficking by Ah Shing. If he were ever to be indicted for that crime, and as I understand it he is not indicted for that crime at the moment, very fine judgments would have to be made as to the appropriate charge. For reasons which will almost immediately appear, this is not something I can take into account for the purpose of sentence. The only conduct for which Mr Kwok can be sentenced in this court at this time is the conduct at the residential platform where he was intercepted.

I should also add that Mr Kwok made no admissions in relation to actual trafficking of any drugs in the flat. I must be very blunt here and say this. Were I the tribunal of fact hearing what I heard at the trial of Mr Ng, I would have been in no doubt that he was guilty of the count of trafficking which appears in the case of Mr Ng as Count 2. However, the plain fact of the matter is that such a charge is not before the court and I wish to make it absolutely clear to all concerned, perhaps especially Mr Kwok, that on no account is any part of the sentence that I will shortly pass on him was influenced to his detriment about the conduct of which I personally believe him to be guilty.

Mr Kwok is 28. He was born in Hong Kong and is a member of an ordinary working-class family. His father died some 10 years ago. Prior to the offence for which he has been convicted, he lived with his family in Sheung Tak Estate in Tseung Kwan O. He was educated to Form 5 and was employed as a driver. His wage was apparently a modest one. I have read and have been moved by the mitigation letters which have been presented on his behalf. The road for Mr Kwok because of the sentence my duty is to shortly pass will be a hard one and it is encouraging to know that he retains the love and support of his family and he has found some solace and support in religious pursuits in the prison. That will, I promise you, matter.

Before I leave that topic, your sister speaks of your rehabilitation. That is a good thing, perhaps the one shining light in your case, but that light is in your hands. You should take every opportunity you can to: (1) reform yourself. I think you will. (2) get educated in prison. The Commissioner for Correctional Services provides excellent facilities for people in your position and I earnestly implore you to take advantage of them because when you leave prison you will need every piece of equipment you can get to reintegrate yourself into society and that will be a challenge.

Now, I do not take into account the fact that the Commissioner for Correctional Services has additional powers to give remissions to the sentence I will shortly pass for good behaviour. But if ever anybody in this prison system should behave himself so as to take full advantage of that, it is you, because your family is waiting for you.

Sentencing principles - starting point for trafficking

The community of Hong Kong and, as a result, the courts of Hong Kong, have for many, many years taken a severe view of drug trafficking, particularly in relation to ‘Ice’. This particular drug has terrible consequences for the individual. Ridding oneself of an addiction to ‘Ice’ is, to say the least, an arduous process and sadly, history demonstrates that attempts to rid oneself of an addiction to ‘Ice’ is fraught with instances of disappointment.

However, there are serious consequences for the community as well. One of those consequences involves the deployment of medical and health facilities to help people who become addicted to drugs such as ‘Ice’. Further, the conduct of persons affected by ‘Ice’ in private and in public can be quite dangerous. In this regard, the ingestion of ‘Ice’ is well-known to produce in some people aggressive and irrational violence and the placement of a person affected by ‘Ice’ behind the wheel of a motor vehicle is a recipe for disaster.

To reflect the serious view that the courts and the community take in relation to the trafficking in dangerous drugs, the courts have provided sentencing guidelines for various forms of ‘Ice’. The maximum penalty under the law is a fine of $5 million or life imprisonment. The policy of our courts has been for many years based on deterrent sentences.

In relation to ‘Ice’, the sentencing guidelines were articulated by the Court of Appeal in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. The Court of Appeal held that for quantities of ‘Ice’ above 600 grammes that the sentencing regime articulated in an earlier case, HKSAR v Abdallah [2009] 2 HKLRD 437 would apply. In Abdallah, the Court of Appeal set out guidelines for the sentencing of large quantities of heroin. However, at the levels of sentence under consideration for such large quantities of ‘Ice’ or heroin, the practical reality is that the sentencing bands for heroin in large quantities are considered by the Court of Appeal to be appropriate. In the case of Mr Kwok, the amount of ‘Ice’ which he possessed for unlawful trafficking is 2,874 grammes. On the guidelines articulated by the Court of Appeal in Abdallah (above), the relevant sentencing band is for amounts between 1,200 grammes and 4,000 grammes. The court declared that the appropriate range of sentence is imprisonment of between 23 and 26 years. The range in question is upon the basis of a conviction after trial. That is the basis upon which the starting point for sentence is calculated.

Discount

The authorities demonstrate that a person who pleads guilty at the earliest practicable opportunity is ordinarily entitled to a discount from the appropriate starting point of 33 per cent.

Resolution

When sentencing for drug quantities that are seen in this case, and when one considers the young man who perpetrated this act, the court inevitably looks at this young man in utter bewilderment and sadness at the waste of what conceivably could have become a good life, perhaps with a family with a future and all of the things that go with it. Let me state this plainly: What I see here is the waste, the terrible, sad waste of a life. The sentence I have to pass now puts you in prison for some of the best years of your life and no doubt, and they have said so already, that will be felt by your family and friends very deeply.

The second response, however, is that given the nature of the drug which was being trafficked in this case, there is an immense sense of relief that there will be avoided the misery and hardship that would have been suffered by those who ultimately purchased the drug. I sincerely hope that this young man might reflect during his time in prison on the harm and misery that he was exposing members of the Hong Kong community to had they ingested this savagely addictive and terrible drug.

Kwok Tsan-ho, please stand up.

The community of Hong Kong demands that you be severely punished and it is the duty of this court in accordance with settled guidelines to punish you for trafficking in this appallingly dangerous drug. I fix a starting point of 24 years’ imprisonment. That is slightly less than the mathematical calculation in the range that I outlined earlier. That is my attempt at a small investment, a small investment in your future. You at least had the wisdom to plead guilty and you are entitled to a reduction in that sentence that you might otherwise have served had you gone to trial.

The sentence I impose upon you is a sentence of 16 years’ imprisonment.