HKSAR v. Wong Li Ching

HCCC 245/2019

[2019] HKCFI 2785

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 245 OF 2019

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

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COURT:

The defendant pleaded guilty before a magistrate to one charge of conspiracy to traffic in dangerous drugs and one charge of trafficking in dangerous drugs. He was committed to the court of first instance for sentence. In sentencing, I have regard to the whole of the circumstances including, in particular, the type and quantity of the drugs concerned, personal background of the defendant and mitigation put forward on his behalf.

The facts of the case may be summarised as follows.

The defendant was intercepted by police officers when he was entering a residential flat. With a key found on him, officers gained entry into the flat and conducted a search. Dangerous drugs which are the subject matters of Charge 2 were found. Also found was a plastic bag containing 9.31 grammes of amantadine, a type of Part 1 poison, a plastic bag containing 373 grammes of a powder which was not dangerous drugs, spoons, two weighing scales, a sealing machine and a pair of scissors.

Under caution, the defendant admitted that all the dangerous drugs belonged to him, he would sell them to others because his business failed and was in heavy debt.

In a subsequent interview, he added that he had delivered dangerous drugs to drivers who were distribute just to buyers. There were about four to five drivers. He was going to the flat in question to divide and repackage dangerous drugs.

Having received the drugs from a driver, he took them to the flat. He went to the flat every day to do the repackaging work for two to three hours and then to deliver the drugs to various drivers. Each time it was about several tens of grammes. He received $1,000 in case of every day of work.

He was introduced to do this by Ah Ming, a friend of a friend. He had known Ah Ming for three to four months. Upon knowing him, he asked him if he would like to work in the flat. Upon arriving at the flat, he came to realise that it was to repackage dangerous drugs and pass to others. He had the keys to the flat. He had no consumption habit.

The defendant is 29 years of age. He was educated up to Form 5 and had worked as a warehouse worker. He is married and was living with his parents and wife at a public housing flat.

In mitigation, learned counsel for the defence, Mr Yuen, submitted letters written by the defendant himself, his parents, his aunt and some friends.

In his letter, the defendant expressed remorse and said he committed the offence under great financial pressure as money was required to treat his parents who had been suffering from ill-health and his own debt. His parents and aunt said the defendant is a filial son and responsible to the family. His friends speak well of him and pleaded leniency on his behalf. The defence also produce certificates which show the defendant performed well both academically and in sports when he was studying.

Medical reports of the father was also produced which showed he is suffering from ill-health and has cancer in his prostate. Parents of the defendant and his family members were in court to show support for the defendant. Mr Yuen also asked the court to take into account the information provided by the prosecution in the letter dated 21 October 2019.

The case concerns ketamine and cocaine. Found inside the flat were 335.4 grammes of a powder and 784 grammes of a crystalline solid containing 807.5 grammes of ketamine and 10.75 grammes of a solid containing 5.90 grammes of cocaine. The quantity of ketamine was overwhelming. Less than one per cent of the drugs was cocaine. In my judgment, it is appropriate to follow the tariff for ketamine as the primary consideration in sentence.

As far as ketamine is concerned, there is no reasons in the present case to depart from the tariff. The Court of Appeal held in SJ v Hii Siew Cheng [2009] 1 HLKRD 1, that in a case of trafficking in ketamine, if the narcotic content is 600 to 1,000 grammes, a sentence of 12 to 14 years’ imprisonment should be considered. By reference to the quantity of the ketamine, a starting point of 13 years’ imprisonment is appropriate. There were only about 5 grammes of cocaine which attracts a starting point of about 3½ years.

As the case involved two kinds of drugs, I have had regard to the guidance provided by the Court of Appeal in cases such as HKSAR v Yip Wai Yin [2004] 3 HKC 367, HKSAR v Yau Ka Ming CACC 144/2013, HKSAR v Chan Yuk Leong CACC 318/2013 and HKSAR v Cheung Wai Man CACC 258/2017.

If the cocaine found is treated as ketamine, the starting point will rise by less than 1 month. The sentence on cocaine is, however, generally heavier than that for ketamine. Besides, I bear in mind the two possible aggravating features of a wider market and the effect on users of combinations of dangerous drugs.

In the light of the relatively small quantity of cocaine found, the weight of the said aggravating features is not heavy in the present case but have to be taken into account. Having considered the whole of the circumstances for Charge 2, I adopt an ultimate starting point of 13½ years.

As far as Charge 1, the conspiracy charge is concerned, I have had regard to the cases such as HKSAR v Tsang Ka Ming [2017] 5 HKLRD 799, HKSAR v Chan Kam Loi, CACC 410/2012, and HKSAR v Chung Yat Ho CACC 367/2010. If the quantity of the drug involved is known, it will provide the court with a ready means of identifying the appropriate starting point, though quantity is not the only fact relevant to the assessment of gravity.

In the present case, the quantity is not known. What I have to do is to analyse the evidence to see whether a conclusion can be made which fairly reflects the quantity of drugs which were agreed to be trafficked and to assess the scope of the conspiracy. It appears to me that the present case was not a particularly sophisticated conspiracy.

It is said the defendant was given a key for access to a flat used to store drugs. He was engaged in the repackaging exercise. There were four to five drivers involved in the delivery of drugs. It was a conspiracy by continuing exercise, not by single incident or several incidents.

The admission of the defendant also provides some indication of the scale of the conspiracy and the defendant’s involvement. He said he had engaged in this activity for at least three months. On average, about several 10s of grammes were delivered each day. If by several 10s, the defendant meant 30 grammes, which is probably a lenient interpretation, by calculation, the quantity of drugs which would have been delivered was in the region of 2,700 grammes. On such indication, my estimate of the quantity which had been dealt with by the defendant was at least 2,000 grammes.

There must be other quantity which was kept for the purpose of trafficking. That about 800 grammes of ketamine was found is another indication I am to take into account. The defendant admitted to have conspired in two types -- in trafficking in two types of drugs. The relevant consideration in relation to multiple drugs is also relevant. In my consideration, I bear in mind what Mr Yuen said and I accept that in making the admission the defendant might be doing his best to recall his participation and the admission might not be made in clear and concrete terms.

Besides, what the defendant says about the quantity of drug he had handled each day, it should be regarded as the gross quantity. Sentencing should be by reference to the narcotic content only. Broadly speaking, purity of the ketamine seized was about 70 per cent. I accept the purity of different batches of dangerous drugs would not be the same. Indeed, as highlighted by Mr Yuen, there was a difference in purity for different bags of the ketamine found. For the bag, 376 grammes in gross weight, the purity was 57.9 per cent. For the bag of 246 grammes, the purity was 86.5 per cent. For the bag of 162 grammes, the purity was 81 per cent. Purity of the cocaine seized was 54.7 per cent.

For the present purpose, I am prepared to consider sentence with reference to a gross quantity of about 2,000 grammes of ketamine and a purity level of 50 per cent. With adjustment taken into account, cocaine was also trafficked in, though, the quantity should have been much lower in considering the level of culpability in the defendant’s conspiracy.

Having considered the whole circumstances, I will adopt 15 years as the starting point for Charge 1. The defendant pleaded guilty before a magistrate. For this, he is entitled to a one-third discount for each charge.

As regards the information provided by the prosecution, having regards to HKSAR v Z CACC 506/2004 and HKSAR v Yeung Hoi Ting CACC 154/2016, I do not consider further discount is justified at this stage.

Having considered the whole of the circumstances, including what counsel said on the defendant’s behalf, in my judgment, one-third is the extent of discount the defendant is entitled to for Charge 2. In relation to Charge 1, the court has been told that if there had been no confession of the defendant, the police would not be aware of the offence. In the circumstances, having regard to the case of Tsang Ka Wing, I will give the defendant an overall discount of about 38 per cent for Charge 1.

Yes, will the defendant please stand up.

For the reasons I have mentioned, I sentence you to an imprisonment term of 9 years and 3 months for Charge 1 and 9 years for Charge 2. Having regard to totality, I order 3 years of the sentence imposed on Charge 2 to run consecutively to the sentence on Charge 1. So you are to serve a total sentence of 12 years and 3 months for the two offences.