HKSAR v. Wong Ka Ho and Another

HCCC 162/2019

[2021] HKCFI 494

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 162 OF 2019

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

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COURT: Background and the Facts

In the early morning of 1 May 2018, D1 was first seen going up and down repeatedly between the 7th floor and the 28th floor of a building in Tai Kok Tsui. Later, a resident of the 7th floor made a complaint to the security guard, saying someone kept banging on the door. When the security guard went up for a check, he found D1 injured and he was banging on the door and shouting. The security guard therefore took D1 to the lobby and called the ambulance for him. However, D1 refused to go to the hospital. He was then taken back to his flat, Flat C, on the 7th Floor.

Meanwhile, the police officers who were conducting an anti-drugs operation and were monitoring the CCTV system of the building went into Flat C. Upon entry, they noticed D1 kept talking to himself and had lacerations on his hands. When the police approached D1, he struggled but he was eventually subdued.

Later, as a result of the search conducted by the police, a total of 73,076 grammes of a solid containing 63,113.7 grammes of ketamine was found in bags and carton boxes put inside the cabinet and on the bed of the two bedrooms of Flat C. Keys to Flat C and Flat 28A of the building were found on D1. Under caution, D1 spoke incoherently. The ketamine seized is the subject matter of the 1st charge.

Later that morning, the police knocked on the door of Flat 28A but no one answered. The police then broke into the unit and found D2 in the bedroom who admitted to be the tenant of the unit. As a result of the search conducted on Flat 28A, 20 packets containing 19,953 grammes of a solid containing 17,088 grammes of cocaine in the form of blocks were found inside a cabinet in the living room together with an electronic scale, two sealers, a stack of empty re-sealable plastic bags and some nylon bags. Keys to Flat 7C and Flat 28A were also found in a bedroom. The cocaine seized is the subject matter of Charge 2.

When interviewed by way of video recording in the police station, D1 said he previously lived with D2 at Flat 28A but as there was not enough space, D2 rented Flat 7C for him later. D1 further admitted that he collected the drugs found in 7C from a person called Eason who had promised him a reward of a few thousand dollars. In respect of the drugs in Flat 28A, D1 said he had also collected that from Eason and stored it there for monetary reward.

In the case of D2, he said during the interview that he was recruited by someone to store the drug for $2,000 per packet. That person later asked him to allow D1 to stay at 28A. D2, however, claimed that he had not received any reward so far. The DNA and fingerprint obtained showed that D2 had been to both 7C and 28A. D2 was also the person who rented both units.

The estimated retail value of the cocaine was about HK$25 million and that for the ketamine was about HK$36 million.

Both pleaded guilty to the two charges of trafficking in a dangerous drug at the committal stage and were brought before this court for sentence. Of course, despite what they said during the interview, both now accept that they jointly trafficked in the drugs mentioned in both Charge 1 and Charge 2.

The Defendants’ Background and Mitigation

D1 was born in Hong Kong and is now aged 38. It was said that D1 was educated up to Form 3 level and had worked as a vehicle attendant and a waiter, but that at the time of the offence, he was a renovation worker. D1 suffers from a heart defect but does not need to take medication for his condition. Prior to this offence, D1 has got seven convictions, including two offences of possession of a dangerous drug and one trafficking in a dangerous drug conviction. For the trafficking offence, he was sentenced to 13 years’ imprisonment in April 2008 and was discharged from the prison in May 2016.

In mitigation, Ms Lai, for D1, submitted that D1 did not have sufficient work at the time but he wanted to contribute to his grandmother’s eye operation. He therefore committed the offence. Ms Lai further informed this court that D1 was himself a drug addict who had taken ketamine since he was 18.

D2 was also born in Hong Kong and is now aged 40. He was educated up to Form 2 level and had worked as a renovation worker. D2 has got seven previous convictions, two of which were possession of a dangerous drug. Three were trafficking in a dangerous drug for which he was sentenced in July 2007. On appeal, the total term for the trafficking offence was reduced to 13 years in January 2008. He was last discharged in July 2015. Ms Tsang, on behalf of D2, frankly accepts that one’s family background and personal circumstances would be of no significance as mitigation in light of this very serious offence.

Sentencing Considerations and the Sentence

The tariffs for trafficking in cocaine are the same as those laid down for heroin in R v Lau Tak Ming and Others [1990] 2 HKLR 370 and in HKSAR v Abdallah [2009] 2 HKLRD 437. For trafficking between 4,000 grammes and 15 kilogrammes of cocaine, the sentence is a term of imprisonment of between 26 to 30 years and that for a quantity which is over 15 kilogrammes, the sentence is at the sentencer’s discretion.

In respect of ketamine, the Court of Appeal pointed out in HKSAR v Sin Chung Kin [2013] 1 HKLRD 627 that if more than 3 kilogrammes of ketamine is involved, the starting point can exceed 20 years although the increase in sentence should not be proportional to the increase in the drug quantity. In HKSAR v So Wing On, CACC 296/2012, which involved 21.31 kilogrammes of ketamine, and HKSAR v Wong Kam Chuen, CACC 75/2012, which involved 39.73 kilogrammes of ketamine and an international element, the starting points of 21 and 22 years were respectively adopted. Further in HKSAR v Yeung Kwok Ming and Another, CACC 224/2007, the 1st count involved trafficking in 426 kilogrammes of ketamine and a starting point of 30 years was adopted.

In HKSAR v Herry Jane Yusuph, CACC 93/2019 (26 November 2020), the Court of Appeal set out a six-step approach for a sentencing judge to follow when assessing the appropriate starting point in the case of trafficking in a dangerous drug. Applying that approach and insofar as these two defendants are concerned, I find that, on the evidence before me, they could properly be regarded as storekeepers, despite the large quantities involved as apart from the drugs seized, there was no other evidence to suggest that they were the masterminds.

Now, both D1 and D2 have been sentenced to quite significant terms of imprisonment for the offence of trafficking in a dangerous drug before and the current offence was committed by them not long after their release from prison. In other words, it would seem that both defendants were not deterred from the sentence imposed previously and that this court is entitled to take that into account to enhance the sentence. However, I have decided not to do so in view of the very lengthy term which is going to be imposed for the present charges.

In respect of the mitigation before me, other than the defendants’ pleas, there is nothing which would warrant a further reduction in relation to their personal circumstances and background.

Therefore, for the quantity of ketamine, that is about 63 kilogrammes involved in Charge 1, I consider that a starting point of 23 years is appropriate.

For the cocaine involved in Charge 2, that is about 17 kilogrammes, I consider that a starting point of 30 years is appropriate.

Having considered the facts of this case and all the relevant circumstances, including that the two lots of drugs were found on the same day; that the facts in respect of the two charges were closely linked together; that a more severe sentence should be passed when there was more than one kind of drug involved; that the established principle is to arrive at an overall starting point having considered the total drugs seized; as well as that drug sentencing is not purely mathematical calculations, I take the view that an overall starting point for the two charges of 33 years, that is 396 months, is appropriate. Standing back, I also consider that this sentence should sufficiently reflect the two defendants’ criminality in this case.

Therefore, after taking into account the defendants’ guilty pleas and all the mitigating factors put before me, including the special circumstances on the papers, I am going to reduce the term of 396 months to 218 months for each of the defendants, which would represent about 45 per cent reduction in sentence.

For each of the defendants, I sentence him to 152 months for Charge 1 and 198 months for Charge 2. To arrive at the final term of 218 months for the two charges, I order that 66 months of Charge 2 are to run wholly consecutively to the 152 months for Charge 1, the rest are to run wholly concurrently.