HKSAR v. Tang Kei Yip

HCCC153/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 153 OF 2009

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

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COURT:   The defendant pleaded guilty at Eastern Magistracy to an offence of trafficking in 183.63 grammes of ketamine - the 1st charge - and to possession of a cocktail of drugs comprising an aggregate of 1.157 grammes of estazolam, 0.02 of a gramme of heroin, and 0.01 of a gramme of midazolam - the 2nd charge.

He was committed to this court for sentence pursuant to the provisions of section 81B of the Magistrates Ordinance.

The facts of the case are that, on the day of the offence, the defendant was present in a flat which was being kept under surveillance by police armed with a search warrant.  When two other males left the flat, they were apprehended by the police who then also gained entry to the premises.  The defendant was found inside the flat, nearby the front door.  The premises were then searched and the drugs the subject of both charges were found in a wardrobe in a storeroom in the premises.

The flat was owned by the defendant’s mother and he resided in the premises at that time.  The defendant admits that he was trafficking in the drugs found in the premises, the subject of the 1st charge, and that he possessed the drugs the subject of the 2nd charge.

The offences in the present case occurred more than two months after the case of The Secretary for Justice v Hii Siew Cheng, Court of Appeal Application for Review No. 7/2006.  In my view, the new guidelines suggested in that case fully apply to the 1st charged offence. 

In respect of that offence and given the quantity of ketamine involved, I take a starting point of sentence of 7 years’ imprisonment.  The only mitigation of substance available to the defendant is his guilty plea and, on that basis, the sentence is reduced to 4 years 8 months’ imprisonment.

I take a starting point of sentence, in respect of the offence the subject of the 2nd charge, of 3 months’ imprisonment. 

In arriving at that starting point, I recognise that there was a considerable risk of the drugs the subject of the 2nd charge falling into the hands of others.  The defendant trafficked in ketamine at the same premises.  Other persons had just left his premises when the police arrived and the drugs the subject of the 2nd charge were kept in the same place as the ketamine in which the defendant trafficked.

Again, the only mitigation is the defendant’s plea of guilty and his sentence is reduced to one of 2 months’ imprisonment.

So far as the totality of sentence is concerned, I consider that because of the latent risk involved in the defendant’s possession of the drugs the subject of the 2nd charge, to which I have referred, 1 month of that sentence should be served consecutively to the sentence imposed in respect of the first charged offence.

That results in a totality of sentence of 4 years 9 months’ imprisonment.