HKSAR v. Chan Ho Sun

HCCC 124/2020

[2020] HKCFI 2103

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 124 OF 2020

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Before: Deputy High Court Judge D Yau in Court

Date of Hearing: 18 August 2020

Date of Sentence: 18 August 2020

Date of Reasons for Sentence: 18 August 2020

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REASONS FOR SENTENCE

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Reasons for sentence

1.The defendant pleaded guilty to one charge of trafficking in a dangerous drug before Magistrate Mr Ho Chun‑yiu and was committed on 8 June 2020 to the Court of First Instance for sentence.

2.Particulars of the offence are that the defendant on 12 June 2019, outside Shop ST5, ground floor, Wah Fung House, Lek Yuen Estate, No 6 Lek Yuen Street, Shatin, unlawfully trafficked in a dangerous drug, namely 4,942 grammes of a powder containing 4,267 grammes of ketamine.

3.Before me, the defendant confirmed his plea of guilty and his admission to the summary of facts and was formally convicted.

Summary of facts

4.An incoming parcel from Malaysia was intercepted by customs officers on 11 June 2019.  Hidden inside were five plastic bags containing the ketamine as particularised.

5.Delivery of the parcel was monitored by customs officers and the defendant was the person who showed up to collect the parcel on 12 June 2019 at the offence address.  He was arrested outside the collection centre after taking delivery.

6.The defendant claimed under caution that he was offered $3,500 by a ‘Sunny’ to collect the parcel.  Although the defendant still had Sunny’s phone number, he refused to take part in a controlled delivery operation.

7.Inspection of the defendant’s mobile phone showed that the defendant had had WhatsApp communications with a certain ‘Sunny’ concerning the collection and reward.  The defendant was instructed to collect and deliver the parcel first to Mei Foo and then Shatin.  A voice message sent to the defendant’s phone at 5:01pm prior to the arrest reminded him to delete all records before ‘the job’.

8.The estimated street value of the dangerous drugs was about $3,014,620 as at 14 May 2020.

Previous conviction

9.The defendant was sentenced to two months’ imprisonment on 5 July 2019 at Kowloon City Magistracy for possession of dangerous drugs.  This was his only previous conviction.

Mitigation

10.The court was told that the defendant committed the offence for financial reasons.

11.The defendant is 24 years old, single, and was born in Hong Kong.  He was educated up to Form 4 level and had engaged in odd jobs since leaving school.  He was a renovation worker earning around $20,000 a month prior to his arrest.

12.The defendant’s retired father is 68 years old and suffers from chest and lung illnesses.  The defendant’s mother is 44 years old and a housewife, while his younger sister is an 18‑year‑old student.  In the mother’s handwritten letter in mitigation, she blames herself for not spending more time with her son, as well as the negative influence the father and the defendant’s peers had on him.

Sentence

13.The maximum sentence for the offence of trafficking in a dangerous drug on conviction upon indictment is a fine of $5 million dollars and life imprisonment.

14.The sentencing tariffs for trafficking in ketamine are found in the case of Secretary for Justice v Hii Siew Cheng[1].  The tariffs for sentence after trial for trafficking in over 1,000 grammes of ketamine is 14 years’ imprisonment upwards.

15.In the case of HKSAR v Sin Chung Kin (單松健)[2], the Court of Appeal stated that the appropriate starting points for trafficking in 2 kg and 3 kg of ketamine should be no less than imprisonment for 18 years and 20 years respectively.

16.The actual quantity of ketamine involved in Sin Chung Kin was 5.12 kg.  The Court of Appeal found that the starting point of 22 years adopted by the trial judge was not manifestly excessive.

17.Taking into consideration the Court of Appeal’s above findings, for the narcotic quantity of 4,267 grammes of ketamine in the present case, I adopt a starting point of 21 years’ imprisonment.

Possible aggravating factor

18.In the case of HKSAR v Ali Qasim[3], the Court of Appeal confirmed that the act of trafficking by way of collection of parcels containing dangerous drugs sent from overseas is an aggravating factor in that the defendant’s action facilitated the importation of the drugs, and as such could be said to add to the offence an ‘international element’.

19.The court is, however, of the view that the level of enhancement based on the presence of this international element must properly reflect the extent of the involvement of the defendant in the importation.

20.Cases where the defendant acted as an international courier who himself trafficked dangerous drugs across the border into Hong Kong are to be distinguished with cases such as the present one, where there is no evidence to suggest that the defendant had organized the sending of the parcel from overseas, and the defendant appeared just to be a simple collector for reward.  The latter may attract a lesser enhancement than the usual two years.

21.In the appeal case of HKSAR v SK Wasim[4], the appellant was engaged to “collect the cartons on the 7^th Floor of Block B” and move them into Room 6.  The Court of Appeal found that there was insufficient evidence contained in the facts and circumstances outlining the offence to show that the appellant knew or must have known the cartons were sent from India and that he was a party in assisting or facilitating the importation of the cartons into Hong Kong.

22.They found that the aggravating factor of an international element being present was not made out in the offence as charged against the appellant.

23.Likewise in the present case, the summary of facts on which the defendant’s conviction is based does not disclose sufficient evidence to suggest that the defendant knew that the parcel was being sent from Malaysia, or even overseas.

24.Therefore, I find that there should not be an enhancement for the aggravating factor of there being an international element against the defendant’s sentence.

25.The defendant is granted the full one‑third discount for his timely plea of guilty and is, therefore, sentenced to 14 years’ imprisonment.

Mr Chau King Fung Fergus, PP, of the Department of Justice, for the Respondent

Mr Lee Jo-Ey Joseph, instructed by Ng & Co, assigned by Director of Legal Aid, for the Defendant