HKSAR v. Goh Keen Heng

HCCC 190/2020

[2021] HKCFI 392

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 190 OF 2020

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

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COURT:  Introduction

The defendant pleaded guilty to one charge of trafficking in a dangerous drug (Charge 1) and one charge of conspiracy to traffic in a dangerous drug in the Magistrates’ Court and is committed to this court for sentence. He confirms his plea before me and his agreement to the Summary of Facts prepared by the prosecution.

Charge 1 concerns 1,747 grammes of a solid containing 1,480 grammes of ketamine which were found in a room in Silka Far East Hotel (“Silka”) in Tsuen Wan on 12 July 2019.

Charge 2 covers the period of seven days between 5 and 12 July 2019 and ketamine is the subject dangerous drug. The quantity, however, is not specified.

Facts

According to the Summary of Facts, the defendant told the police in a video-recorded interview after his arrest that he came from Malaysia to Hong Kong in response to a job advertised on Facebook, which offered paid food, accommodation and air ticket. It was only after his arrival that he found out that the job required him to package and deliver ketamine in Hong Kong.

Before the police entered into the defendant’s hotel room in Silka, they heard toilet-flushing sounds emitting from inside. Immediately upon entering the room with a spare keycard, they found the defendant standing outside the toilet. The police then searched the room. In a shoebox inside a safe, they found: (a) seven transparent resealable plastic bags containing the subject matter of Charge 1; (b) a transparent resealable plastic bag containing 30 resealable plastic bags, a toothbrush and a cosmetic brush; and (c) an electronic scale. At the time, the defendant had on him cash of about HK$2,500, $34.45 ringgits and four mobile phones with six SIM cards.

It is noteworthy that each of the seven aforesaid resealable plastic bags with dangerous drugs inside weighed around 249 to 252 grammes, and each of them contained 210 to 213 grammes of ketamine narcotic. The estimated street value of all the ketamine seized was about HK$1,025,489.

Under caution, the defendant said he came to Hong Kong on 5 July 2019. At first, his recruiter arranged him to stay in a hotel room in Tsing Yi. On the following day, he was given three bags of ketamine and was asked to brush the ketamine before packaging them. Besides that, he used the electronic scale to weigh ketamine and put it into each plastic bag of about 254 grammes of the solid. He said he had also been given five SIM cards for communication and also HK$10,000 as petty cash, and that the Hong Kong dollar found on him was the leftover of the petty cash.

Subsequently, on 8 July 2019, he was told by the recruiter to move and check into Silka. Therefore, he then took with him the shoebox containing the plastic bags of dangerous drug. He said that he had performed drug delivery for his recruiter for about five to six times.

Antecedent

The defendant is a Malaysian and is now aged 20. He is educated up to Form 3 and is single. By way of mitigation, I am told by Mr Lau that the defendant’s father is now aged 61. The defendant’s mother had left the family when the defendant was still young. The defendant has one elder brother and one elder sister. The defendant committed the present offence because of greed.

Mr Lau adduces for my reference mitigation letters written by the defendant, the defendant’s father, Reverend Lam of Christian Prison Pastoral Association Limited and Mr Lui of the Special Life of Jesus Church. The letters say, among other things, that the defendant is now remorseful and determined to turn a new leaf and they plead for leniency. I have regard to the contents of all the letters.

Sentence

Charge 1: For Charge 1, based on the quantity of ketamine (1,480 grammes) and the defendant’s role as a drug courier, I adopt 15 years’ imprisonment as the starting point (see Secretary for Justice v Hii Siew Cheng).

Although the defendant is from Malaysia, I agree with Mr Lam that there is not a cross-border element in this case and there is nothing to suggest that the ketamine was imported into Hong Kong or that the defendant was involved in its importation (see HKSAR v SK Wasim).

I trust that Mr Lau has said all he could for the defendant in mitigation, but the only mitigating factor which may reduce the defendant’s sentence is his timely plea for which he is entitled to the full one-third discount, as a result of which the sentence on Charge 1 is reduced to 10 years’ imprisonment.

Charge 2: The sentencing of Charge 2, which is a conspiracy charge, is less straightforward. Although the defendant agreed that the drug involved was ketamine, its quantity is not spelt out in the charge.

Based on HKSAR v Chan Kam Loi and HKSAR v Tsang Ka Wing, for the purpose of sentencing, this court is enjoined to do the best it can to arrive at certain assumptions which can properly derive from the Agreed Facts. In this regard, on the basis of:

(1) the defendant’s admission to the police that all the ketamine, including those which he had already delivered and those seized by the police, came from the same lot given to him by his recruiter;

(2) the defendant’s admission to the police that he had put about 250 grammes of a solid into each transparent resealable plastic bag and that he had delivered dangerous drugs on the instruction of his recruiter for five to six times; and

(3) the Admitted Facts that all the seven transparent resealable plastic bags found inside the hotel room were similarly packaged and of a similar weight, and that each of them contained 210 to 213 grammes of ketamine narcotic.

For sentencing purpose, I assume in favour of the defendant that he had delivered ketamine on five occasions and only one transparent plastic bag of ketamine was delivered at a time and each bag of ketamine so delivered contained about 200 grammes of ketamine narcotic.

Therefore, the total quantity of ketamine narcotic which the defendant had delivered in relation to Charge 2 would be about 1,000 grammes in total.

On this basis, if the charge were one of trafficking, then the starting point would be about 14 years’ imprisonment. This, in my view, is also appropriate to reflect the criminality of the defendant in the conspiracy. As such, I adopt 14 years’ imprisonment as the starting point of Charge 2, which is reduced to 9 years and 4 months’ imprisonment for the defendant’s timely plea.

Totality

In considering totality of the defendant’s sentence, I take into account the total quantity of ketamine narcotic which was involved in this case, namely, about 1,480 plus 1,000 equal 2,480 grammes. Based on HKSAR v Sin Chung Kin, trafficking in this quantity of ketamine narcotic would attract a starting point of 18 to 20 years’ imprisonment after trial.

However, because of the relatively young age and clear record of the defendant, as an exercise of mercy, I do not want to impose too crushing a sentence on him. Having looked at the matter in the round, I am of the view that it would be appropriate to adopt an after-trial starting point of 18 years’ imprisonment, which is reduced to 12 years’ imprisonment for the defendant’s timely plea.

To achieve that, I order that only 2 years of the sentence on Charge 2 is to run consecutively to the sentence on Charge 1, thus making an overall imprisonment term of 12 years.