HKSAR v. Chan Kwong Pang and Another

HCCC235/2009
and
HCCC236/2009
(heard together)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 235 OF 2009
and
236 of 2009

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HKSAR

v.

CHAN KWONG-PANG (A1)
 TSANG WAH-KONG (A2)

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Before:   Deputy High Court Judge Longley

Date: 14 October 2009 at 2.27 pm

Offence:  Trafficking in a dangerous drug (販運危險藥物)

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

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COURT:  Chan Kwong-pang and Tsang Wah-kong, you have each pleaded guilty to trafficking in a dangerous drug, namely 1,051.47 grammes of a powder containing 457.67 grammes of ketamine.  Your plea, Tsang Wah-kong, was in the Magistrates’ Court on 26 June this year when you admitted the facts and were committed to this court for sentence.  Your plea, Chan Kwong-pang, came this morning in this court. 

Insofar as you, Chan Kwong-pang are concerned, the drugs that form the subject matter of the charge were found by the police beside the computer desk in your bedroom in Mei Tin Estate in Shatin on the afternoon of 20 February this year.  At the time the police entered the bedroom you were watching a video on the computer.  You immediately admitted to the police that the drugs were ketamine, that they belonged to you and were nothing to do with anybody else.  You subsequently admitted that, acting on the instructions of another person called Ah Hung, you had gone to the mainland to buy the drugs.  The purchase price for the drugs had been $30,000.  The Narcotics Bureau have estimated the street value of the drugs at that time in Hong Kong as something over $121,000.  You told the police that you did not bring the drugs into Hong Kong yourself, but were told that you would be contacted when they arrived, and you would then have to deliver them to Tsim Sha Tsui.  Your reward would be $4,000.  You received a call earlier that afternoon, telling you that the drugs had arrived.  Rather than go and collect the drugs yourself, you sent your 17-year-old brother, Chan Kwong-yee, to collect the bag which contained the drugs from outside a Circle-K store in the estate.  You say that you did not tell him what was inside the bag.  Your brother brought the bag containing the drugs back to the flat. 

You, Tsang Wah-kong, were the person who brought the drugs back from the mainland to Hong Kong and left them outside the Circle-K store where they were collected by Chan Kwong-yee.  Your fingerprints were found on the bag containing the drugs.  According to you, you were acting on the instructions of somebody called Ah Tao. 

Ketamine is a drug that has become increasingly prevalent among young people in Hong Kong.  This was a very substantial quantity of the drug which both of you had been instrumental in bringing into Hong Kong, no doubt ultimately for the sale to others.  I am prepared to accept, for the purpose of mitigation, that both of you were acting on the instruction of others. 

The increasing prevalence of ketamine caused the Court of Appeal to hand down new guidelines for sentence in June 2008 in the case of Hii Siew Cheng.

Those guidelines provide for a tariff of between 9 and 12 years when their narcotic quantity is between 300 and 600 grammes.  The narcotic quantity of the drugs involved in this case falls almost exactly in the middle of the tariff band.  This would, on a purely mathematical basis, result in a starting point of 10½ years’ imprisonment if there were no unusual circumstances of aggravation or mitigation.  In both your cases there is the serious aggravating feature in that you were instrumental in these drugs being brought into Hong Kong. 

It has been suggested to me that the Court of Appeal’s guidelines in a case of Hii Siew Cheng already take into account the international element.  I find no basis for that suggestion. 

As far as you Chan Kwong-pang are concerned, you were an adult aged 20 at the time of this offence.  You committed the offence for the financial reward it would bring you.  You have a previous conviction for possession of dangerous drugs two years ago, which I disregard for the purpose of sentence. 

The extent to which the starting point for an offence of trafficking in dangerous drugs should be enhanced because of the international element depends on the circumstances, including the nature and quantity of the drugs involved.  Taking into account the fact that it was only as a result of your admission that the police learnt that you had been concerned in the importation of this ketamine into Hong Kong, and the nature and quantity of the drug involved, I regard the appropriate enhancement of the starting point for this feature in this case as one year. 

The second aggravating feature is the fact that you used your 17-year-old brother to collect the drugs for you from outside the Circle-K store.  The fact that you may not have told him that he was collecting drugs, that he was your brother and that he was 17 at the time, are circumstances that the court can take into account, but they do not mean that your use of his services should not be taken into account as an aggravating feature under s.56(A)2(d) of the Dangerous Drugs Ordinance.  The courts are bound to make it clear that those who use minors in their drug trafficking activities will receive an enhanced sentence.

In the circumstances of this case, and bearing in mind the factors to which I have referred, I enhance the starting point by a further six months to reflect that fact. 

Adopting an initial starting point of 10½ years’ imprisonment, but increasing it to reflect the aggravating circumstances to which I have referred, I am satisfied that an appropriate final starting point in your case is 12 years’ imprisonment.  The only substantial mitigating factor in your case is your plea of guilty, and for that you are entitled to the usual discount of one-third.

Accordingly, I sentence you to 8 years’ imprisonment.

You, Tsang Wah-kong, were 17 years old at the time of this offence.  However, at that time, the time you committed this offence, you had already been before the courts for the offence of theft, to which you had been sent to a rehabilitation centre.  Clearly, that experience had not led you to shun undesirable associates or to lead a decent law- abiding life.  In February this year, despite the fact that you must have known very serious consequences would follow if you were caught, you brought the ketamine that is the subject matter of the charge from the mainland into Hong Kong.  Your counsel, Mr Beel, has told me that your reward would have been $2,000.  Your age in such circumstances can provide very limited weight in mitigation. 

Taking an initial starting point of 10 years’ imprisonment in your case to reflect your age at the time, I increase that by one year to reflect the aggravating feature of the fact that you imported these drugs into Hong Kong.  In deciding upon 1 year, I have borne in mind that it was you who disclosed to the police what your role had been and the nature and quantity of the drug.  As a result, I adopt an overall starting point of 11 years’ imprisonment.  You are entitled to the usual discount of one-third to reflect your plea of guilty at the first opportunity, resulting in a sentence for this offence of 7 years 4 months, that is 88 months' imprisonment.

Following this offence, but before the police had connected you to it, you went on to commit another offence of trafficking in dangerous drugs, together with another youth, on 3 March this year.  This involved the selling of 4.27 grammes of a powder containing 3.5 grammes of ketamine to a person who, unknown to you, was an undercover police officer.  On 30 April this year you were sentenced to 24 months’ imprisonment for that offence, and you are now serving that sentence.  Your counsel, Mr Beel, has informed me that since starting that sentence you have come to your senses and enrolled in several Form 5 courses, as well as a catering course with a view to taking up a career in that field on your release.  He urges me, when considering the question of totality, not to impose a crushing sentence which would deter you from your determination to rehabilitate yourself.  I hope you have determined to make a fresh start when you are released. 

Bearing the submissions of Mr Beel in mind, I am prepared to order that the sentence of 7 years 4 months, which I impose upon you today, shall commence after you have served 9 months of the sentence which was imposed upon you on 30 April 2009.  And that is the sentence I pass.