HKSAR v. Khamtong Rakchat and Another

HCCC 159/2019

[2020] HKCFI 713

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 159 OF 2019

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

There are two defendants in this case. Both of them pleaded guilty before a magistrate and were committed to the Court of First Instance for sentence.

D1 was convicted of one charge of possession of dangerous drugs, Charge 1, and one charge of trafficking in a dangerous drug, Charge 2. D2 was convicted of one charge of trafficking in a dangerous drug, Charge 3. The dangerous drug involved was ketamine.

In sentencing, I have considered the whole circumstances of the case, including its nature and facts, in particular the type and quantity of the dangerous drug involved, background of each of the defendants and mitigation put forward on their behalf.

The facts which both defendants admitted may be summarized as follows. When D1 and D2 arrived from Bangkok by air, they were intercepted by customs officers at the airport customs arrival hall. Upon search of D1, a small quantity of ketamine, which is the subject matter of Charge 1, contained in a folded banknote was found in his wallet. D1 admitted that it was K, a drug, for him to eat. He further admitted to have other drugs in his baggage.

Inside his suitcase two packets of ketamine, which form the subject matter of Charge 2, were found. He admitted that it was dangerous drug K, and he carried it for a friend for a reward of 100,000 Thai Baht. He was to take the drug to a hotel for a couple to collect. He was told the couple would give him 800,000 Baht of which 100,000 Baht was to be for him and 50,000 Baht for D2.

In a subsequent interview, D1 further admitted that after he had obtained the drug which was of a total weight of about 1 kilogramme, he gave half to D2. They then travelled together to Hong Kong, bringing the drug.

As regards D2, two packets of ketamine were found inside his suitcase. He admitted it was ketamine. In a subsequent interview, D2 admitted that D1 had offered to give him 50,000 Baht for delivering drug. He agreed and came to Hong Kong with D1, each carrying drug. He had not received any reward yet.

D1 later participated in a controlled delivery operation. Despite several communication between D1 and the couple and arrangement made for handing-over of the drug, the couple did not appear. The operation terminated.

D1 is a Thai, now 36 years old. He is divorced and has a son, 5 years old. He lives alone in Bangkok. He was educated up to secondary 6 level and ran his own business, providing transportation to tourists, earning not less than 100,000 Baht a month.

D2 is also a Thai. He is now 21 years old. He is not married but has a 3-year-old daughter. He lives alone. He was educated up to secondary 3 level and has worked as a leaflet distributor and restaurant waiter.

In mitigation, Mr Shaw for D1 stressed that D1 had no criminal record and had a proper job as a tourist transportation guide. Ms Ma for D2 also stressed that D2 had no criminal record. She informed the court that D2 was brought up by an adopted family. The girlfriend of D2 deserted him after having given birth to their daughter. He has to entrust the care of his daughter to his adopted mother. He paid her the expenses on a regular basis. Not long before the incident, the adopted mother asked for more because his daughter was not enjoying good health. It was under that circumstances that he agreed to traffic drugs to Hong Kong with D1 whom he knew for one year.

It is said that D2 is now remorseful and has worked hard during custody to equip himself for future job, especially in learning English. It is hoped that with efficacy in English he can secure a job in the airport. Christianity has also an impact on D2.

The dangerous drug which the defendants trafficked in was ketamine. Each of them admitted to be acting in concert and it was D1 who asked D2 to participate. Each of them was charged separately for the drug found possessed only by him and not for the total quantity. In accordance with the approach approved by the Court of Appeal in HKSAR v Dewi Ilmayanti, CACC 370/2015, each of the defendants is to be sentenced according to the offence he was charged with.

D1 was charged with trafficking in 501 grammes of a crystalline solid containing 430 grammes of ketamine. D2 was charged with trafficking in 502 grammes of a crystalline solid containing 435 grammes of ketamine. In SJ v Hii Siew Cheng [2009] 1 HKLRD 1, the Court of Appeal suggested that in a case where the narcotic content is 300 to 600 grammes, a sentence of 9 to 12 years’ imprisonment should be considered. There was an international element for which having regard to HKSAR v Chan Ka Yiu, CACC 147/2016, I will enhance the starting point by about 6 months.

The ultimate starting point I will adopt is therefore, for Charge 1, D1, 9 months; Charge 2 for D1, 10 years and 9 months; Charge 3 for D2, 10 years and 9 months. Both defendants pleaded guilty before a magistrate and are entitled to a one-third discount for this reason.

D1 had participated in a controlled delivery operation despite it was unsuccessful. There is further information in relation to D1 which I have taken into account. All in all, having regard to relevant authorities, including in particular HKSAR v Godson Okoro, CACC 222/2015, I am of the view that D1 should be entitled to a slight further discount.

As regards D2, having considered the whole circumstances, including mitigation submission, I am of the view that one‑third is the extent of discount D2 is entitled to.

Both counsel mentioned during mitigation financial pressure suffered by the defendants which, in the circumstances of the present case, cannot be recognized as a mitigation factor. This applies to both defendants.

Right. So, defendants, please stand up. For the reasons I have mentioned, I sentence you to the following sentences: for D1, for Charge 1, I sentence you to 5 months and 3 weeks’ imprisonment; for Charge 2, 6 years and 10 months’ imprisonment. And having regard to totality, I order the two sentences to run concurrently. D1 is to serve a total imprisonment term of 6 years and 10 months for the two charges. For D2, for Charge 3, I sentence you to 7 years and 2 months’ imprisonment.