HKSAR v. Yotapraset Sugontee and Another

HCCC 308/2019

[2019] HKCFI 3109

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 308 OF 2019

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REASONS FOR SENTENCE

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INTRODUCTION

1.The 1^st and 2^nd defendant each pleaded guilty to one count of trafficking in dangerous drugs on 9 September 2019 before a magistrate at the Eastern Magistrates’ Court and were committed to the Court of First Instance for sentence pursuant to section 81B(2) of the Magistrates Ordinance, Cap 227.

OUTLINE OF FACTS

The 1^st defendant: count 1

2.The 1^st defendant was intercepted on 28 December 2018 by customs officers at Customs Arrival Hall B of the Hong Kong International Airport upon arrival from Bangkok.  Officers found from his suitcase 1409 grammes of a crystalline solid containing 1220 grammes of the dangerous drug ketamine.

The 2^nd defendant: count 2

3.The 2^nd defendant was intercepted on the same day and at the same place by customs officers, having also flown in from Bangkok.  Officers conducted a search of his baggage and found multiple tin foil wrapped packets with a total of 1109 grammes of a crystalline solid containing 962 grammes of ketamine, and 300 grammes of a powder containing 260 grammes of ketamine.

PREVIOUS CONVICTIONS

4.Both defendants are of previously clear record in Hong Kong.

MITIGATION

5.The 1^st defendant is a Thai national aged 30.  He is single and educated up to primary six level.  He worked as a motorcycle taxi driver prior to his arrest, earning around Thai Baht 10,000 per month.  He would contribute half of that to his family to help pay their rent and his sibling’s school fees, as well as towards his mother’s medical expenses for treatment of her diabetes and pneumonia related issues.

6.According to Mr Arthur’s written submissions, the 1^st defendant was introduced to drug traffickers in Bangkok by people who knew about his family’s financial difficulties.  They promised him a substantial reward of around HKD25,000 for bringing the drugs to Hong Kong.  The defendant regrets committing the offence and had tried to provide assistance to the authorities. I have not been told that anything had come of it.

7.The 2^nd defendant is also a Thai national, aged 28. He is single and educated up to high school level.  The defendant worked as a porter at the airport in Thailand earning about HKD7,500 to 10,000 per month prior to his arrest.  He was living with his parents and his 72‑year‑old mother is dependent on him.

SENTENCE

8.The maximum sentence for trafficking in dangerous drugs is that of life imprisonment and fine of $5 million.

9.The sentencing guidelines for trafficking in ketamine are found in the cases of Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1; CAAR 7/2006 and HKSAR v Sin Chung Kin [2013] 1 HKLRD 622; CACC 458/2011.

10.It is not disputed that for trafficking in over 1000 grammes of ketamine, the tariffs for sentence after trial should be 14 years upwards.

11.In the said case of Sin Chung Kin, the Court of Appeal held that the starting point for trafficking in 2000 grammes of ketamine should be no less than 18 years’ imprisonment.

12.As suggested by Mr Tracy for the 2^nd defendant, when read together, the two cases suggest a tariff range of 14 to 18 years’ imprisonment for trafficking in 1000 to 2000 grammes of ketamine.  I agree with Mr Tracy.

The 1^st defendant’s sentence for 1220 grammes of ketamine

13.An arithmetic application of the said tariffs would lead to a starting point of 178 months, or 14 years and 10 months’ imprisonment. I see no reason to depart from the guideline tariff.  This is the starting point I adopt.

The 2^nd defendant’s sentence for 1222 grammes of ketamine

14.Since the quantity of ketamine the 2^nd defendant trafficked in is almost identical to that of the 1^st defendant, and there being no reason to depart from the guideline tariff, I will also adopt a starting point of 14 years and 10 months’ imprisonment for the 2^nd defendant.

Aggravating factor

15.As rightly conceded by both Mr Arthur and Mr Tracy, the fact that the defendants had brought the drugs into Hong Kong from Thailand is an aggravating factor.

16.The range of enhancement for this aggravating factor was considered and set out in the case of HKSAR v Chan Ka Yiu and others [2018] 4 HKC 591; CACC 147/2016.  For cases involving trafficking in ketamine across the border of Hong Kong, the guidelines for enhancement for 1000 to 3000 grammes of narcotic quantity is that of one to two years.

17.An arithmetic application of the guidelines would yield an enhancement of 13 months.  This is the enhancement I adopt in relation to each of the two defendants.

Mitigating Factor

18.I find the defendants’ personal circumstances are not so unusual as to warrant a reduction in sentence.

19.As for the 1^st defendant’s act of helping to prevent a fellow inmate committing suicide, while commendable, I do not find that would justify a reduction in his sentence.

20.The only mitigating factor that warrants a reduction in sentence is the defendants’ timely pleas of guilty, for which they will each be granted the full one‑third discount.

FINAL SENTENCES

21.The 1^st defendant is, therefore, sentenced to 10 years and 7 months’ imprisonment after plea for count 1.

22.The 2^nd defendant is sentenced to 10 years and 7 months’ imprisonment after plea for count 2.

Mr Michael Tsang, SPP (Ag), of the Department of Justice, for the Respondent

Mr Michael Arthur, instructed by WK To & Co, assigned by Director of Legal Aid, for the 1^st Defendant

Mr Maurice Tracy, instructed by WK To & Co, assigned by Director of Legal Aid, for the 2^nd Defendant