HKSAR v. Wong Kin Kau

HCCC133/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 133 OF 2009

-----------------

-----------------

------------------------------------------------------------------

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

------------------------------------------------------------------

COURT:  The defendant has pleaded guilty to a total of three counts of trafficking in a dangerous drug.

The 1st count is related to 0.69 grammes of a crystalline solid containing 0.69 grammes of methamphetamine hydrochloride and 1.33 grammes of cannabis in a herbal form.

The 2nd count of trafficking is in relation to 800 grammes of a powder containing 300 grammes of ketamine, 57.42 grammes of a crystalline solid containing 56.70 grammes of methamphetamine hydrochloride, 1,538 tablets containing 10.94 grammes of nimetazepam, and 398 tablets and 5.28 grammes of tablet fragments containing a total of 0.68 grammes of methamphetamine.

The 3rd count relates to 2,320.17 grammes of cannabis in a herbal form.

The Summary of Facts show that at about 4.15 am on 31 October, the defendant was intercepted, and he was found holding a small packet of “Ice” and herbal cannabis in his left hand.  The accused was cautioned, and he stated that the cannabis flower and “Ice” belongs to him and it was for his own consumption.

These drugs were subsequently examined, and they constitute 0.69 grammes of a crystalline solid containing 0.69 grammes of methamphetamine hydrochloride and 1.33 grammes of cannabis in a herbal form.

The police went with the defendant to the residence of the defendant, and the drugs in Count 2 were discovered in the living room.  Apart from these drugs was also found a sealing machine and electronic scale and an amount of resealable plastic bags, and in the kitchen was found a suitcase containing the cannabis in a herbal form particularised in the 3rd count.

Upon being cautioned, the defendant claimed that someone called “Ah Quan” had deposited the drugs in his flat for him to keep in his custody, and gave him $500 for doing this.  The defendant said that he knew that the things found in his flat were dangerous drugs.

The total drugs seized in this case, if sold at the retail level in Hong Kong for the month of October, would command an estimated retail value of $352,872.

The defendant was the sole registered tenant of the flat.

The defendant is aged 48 and has a criminal record, and his record reflects that he has been convicted on six occasions in court, and he had previous convictions relating to dangerous drugs.  The last conviction was in 1994, when he was sent to a drug addiction treatment centre, but the previous offences of dangerous drugs were merely possession offences, and this is his first trafficking in dangerous drugs offence.

Mr Ho, acting on his behalf, in mitigation, has prepared a very professional and detailed mitigation.  Mr Ho has also, in his detailed submission, assisted the court greatly on the tariff guidelines, and for this, this court is grateful to him.

The main concern of the court when dealing with a charge which includes several different drugs is that one takes a notional amount, being the drugs which carry a more severe sentence, and from there, work out a starting point for the count.

In relation to the drugs in this case, guidelines have already been laid down.  For “Ice”, it is Attorney-General v Ching Kwok Hung (1990) which stipulates that between 10 to 70 grammes, a term of imprisonment between 7 to 10 years is recommended; and then for ketamine and Ecstasy, the new tariff was set down in the case of Secretary for Justice v Hii Siew Cheng CAAR 7 of 2006, where the Court of Appeal had set down the guideline that for trafficking of between 50 to 300 grammes of ketamine and Ecstasy, a sentence of 6 to 9 years is recommended.

As far as cannabis is concerned, in the case of Attorney-General v Chan Chi Man CAAR 19 of 1986, the Court of Appeal laid down guidelines for cannabis in a resin form.  For over 2,000 grammes of cannabis in a resin form, 16 to 24 months is recommended.

Of course, as Mr Ho correctly pointed out, it has been recognised that cannabis in a herbal form would command a lesser sentence, because it is found to have less potency than cannabis in a resin form.

So having considered those guidelines, in mitigation Mr Ho has brought forward the background of the defendant.  He had tried to be a good citizen since his last conviction in 1994.  He was working as a waiter, but unfortunately he caught tuberculosis and he lost his job, and due to his economic circumstance, he therefore indulged in drugs again.

But one must not forget that for this kind of offence, background counts for nothing, or pales into insignificance when compared to the evil that these drugs can do, and so the courts have to sentence with deterrence in mind.

Having considered the guidelines, I consider that in relation to Count 1, for the amount of “Ice” in that count, a starting point of 18 months is appropriate.  Because he pleaded guilty, the defendant is entitled to one-third discount, so that brings the sentence down to 12 months.

In the 2nd count, apart from ketamine and “Ice” there is also a drug called nimetazepam, and it is because of that drug that we had an adjournment, for it is better for me to understand that particular drug that we are dealing with, and I have before me a report submitted by Mr Wong for the Department of Justice, with the consent of Mr Ho, as to the qualities of this drug, and it is prepared by a Dr Ben Cheung of the Substance Abuse Assessment Unit of the Kwai Chung Hospital in 2005.

This drug is considered to be and widely used as a sedative, hypnotic, muscle relaxant or anticonvulsant.  The primary clinical effect is inducing sedation or hypnosis.  It also causes cognitive dysfunction ranging from short-term memory impairment and confusion to delirium.  It can lead to disinhibition and other behavioural aberrations including extreme agitation, psychosis, paranoia and depression, sometimes with violence towards self or others.

It is not available for prescription in Hong Kong.  In Hong Kong it is only acquired through black market sales, and it is abused to produce an altered state of mind.  It is considered to be equally as dangerous as Ecstasy and ketamine, and according to Dr Cheung, this drug is a psychologically compelling substance of abuse.  It is associated with a multitude of physical and psychiatric complications, some of them being serious and irreversible, and if abused with other illicit drugs at the same time, the harms and risks are further intensified.

Dr Cheung’s conclusion is that the rapid rise in its abuse had become a serious threat to the wellbeing of the next generation in Hong Kong.

So it is clear, therefore, that one has to view nimetazepam, or, as it is commonly known, “No.5” or “wong fei hung”, as equally dangerous as ketamine and Ecstasy, so the guidelines in ketamine and Ecstasy would apply to this drug.

So having considered the total amount of drugs in the 2nd count where we have 300 grammes of ketamine, 10.94 grammes of nimetazepam, 56.7 grammes of “Ice” and a small amount, in comparison, of tablets containing “Ice”, I have come to the conclusion that an overall sentence of 18 years’ imprisonment is appropriate.

Taking into account the one-third discount, the sentence will fall to 12 years’ imprisonment.

On the 3rd count, which is for the cannabis in a herbal form, as I have indicated, the guideline which I have referred to, the Chan Chi Man guideline, referred to the cannabis in a resin form, and for the same amount for cannabis in a resin form, Chan Chi Man actually suggests a guideline for over 2,000 grammes of 16 to 24 months.  But taking into account this is of a herbal form, I consider that a starting point of 9 months’ imprisonment would be appropriate.  Reducing it by one-third, therefore 6 months’ imprisonment is appropriate in this count.

Having to consider the totality, as I have mentioned, I have taken into account the background information, the circumstances in which these drugs were found, the background of the defendant, and so I consider that having taken into account the totality principle, that all three sentences should be concurrent.

So the defendant is sent to prison for a total of 12 years.