HKSAR v. Law Kam Loi and Another

HCCC 239/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 239 OF 2014

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Transcript of the Audio Recording
of the Sentence in the above Case
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COURT: Defendants, you have each pleaded guilty to a charge of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance.

The date and location of the offences are similar, however, the quantity of drugs which you trafficked in were different and thus you were both charged separately for the quantity of drugs found in your possession.

1st defendant, you pleaded guilty to unlawful trafficking in 4.33 kilogrammes of a solid containing 3.51 kilogrammes of ketamine.

2nd defendant, you pleaded guilty to unlawfully trafficking in 0.63 of a kilogramme of a solid containing 0.51 of a kilogramme of ketamine.

The offences were committed on the 5th floor of Ming Sang Industrial Building, Hing Yip Street, Kwun Tong, on 2 December 2013. At about 4.20 pm that day, police officers saw the 1st defendant exiting a lift on the 5th floor. At that time, D1, you were carrying a black messenger bag and a brown paper box. When you were intercepted by the police officers, you pointed at Room 521 and said that you rented a flat there and you were waiting for someone to bring you the key to open the door.

The police officers searched your messenger bag that you were carrying, in it, was found two resealable plastic bags containing a quantity of ketamine. You were then arrested and cautioned and you told the officer, “Ah Sir, these two packets of 'K Chai', I just distribute goods for Ah Kwok. Give me a chance”.

The police then conducted a further search of the brown paper box you were carrying and found inside were a total of 46 hard plastic teddy bears. When a police officer opened one of the teddy bears, inside was found a semicircular black plastic case. Inside the case contained crystalline white-coloured powder. Again you were arrested and cautioned and you told the officer that, “All these are 'K Chai', again I just distribute goods for Ah Kwok”. The remaining 45 plastic teddy bears were examined and inside the black plastic cases within the bears was found further amounts of ketamine.

The total amount of dangerous drugs found in your possession, 1st defendant, that is in the two plastic bags and the plastic teddy bears, amounted to 4.33 kilogrammes of a solid containing 3.51 kilogrammes of ketamine.

In a video-recorded interview with the police, you told the police that Ah Kwok had told you to rent the Room 521 at the Ming Sang Industrial Building. You were told to collect the box from SF Express Centre. After collection, you were told it was ketamine and you were to take the dangerous drugs to Room 521 where it would be weighed and divided into 250 grammes per packet and, thereafter, you would receive $500 per packet.

2nd defendant, in respect of your charge, on the same date at the same floor of the industrial building, at about 4.56pm, some 30 minutes later, the police officers found a toilet booth was locked and after waiting for some time, asked the occupant of that booth to come out. 2nd defendant, you came out of the toilet booth and a search was conducted on you by the police officer.

Inside your right front vest pocket, a resealable plastic bag containing 0.63 of a kilogramme of a solid and 0.15 of a kilogramme of ketamine was found. A set of keys was also found in your possession. The keys were tested on Room 521 and successfully opened the door to those premises.

In a video-recorded interview, you stated that the packet of ketamine was given to you by Ah Tung and you would be paid $1,000 to make the delivery to the 5th floor of Ming Sang Building. You were also given a key which you would give to the person who would pay you.

It is agreed that the estimated street value of the drugs found on the 1st defendant as at December 2013 was $519,600 and the estimated street value of the drugs found on the 2nd defendant was $75,600. The total value of drugs found that day was therefore $595,200.

1st defendant and 2nd defendant, you have had the same counsel mitigate on your behalf today, Mr Geoffrey Chang, and I have taken into account all that he has had to say on your behalf.

I turn first to deal with the 1st defendant. D1, you have six previous convictions, four of possession of dangerous drugs and two of wounding. You were last discharged from DATC on 13 October 2010. You are 34 years of age, single, and live with your parents.

I am informed by Mr Chang that since your discharge from DATC in 2010, you had in fact stopped taking drugs. You had been gainfully employed some two to three years before your arrest but, as a result of you suffering from a kidney bladder disease which causes you to go frequently to the toilet, you were unable to find any permanent jobs. Furthermore, you suffered from a very heartfelt sadness in your family when your own younger sister died of kidney disease, aged 18, in early 2013.

You had been seeking private medical treatment for your kidney disease as you found that the public hospital system was not providing you with sufficient consultations as you were only able to see a doctor once a year. As a result, the private consultations cost you about $1,000 each time and thus you were in financial constraints. You had succumbed to the reward offered by Kwok so as to provide for your medical expenses and your parents who are aged 84 and 60 being your father and mother respectively.

Mr Kwok had taken you to rent a flat but did not give you the key, and as remuneration for this delivery, you would have received an amount of some $7,000. That is on the basis of you delivering 3,510 grammes, dividing it into 250 grammes per packet, that is 14 packets times $500 for each packet, which would be $7,000.

I have considered the letters written by yourself and your parents in that you are a filial son and that your younger sister’s death has had a heavy impact, not only on you but on the family. He reason that you committed this offence was to provide for your family expenses and your medical expenses and your younger sister’s funeral expenses. I see that you have written that you are shameful and remorseful and wish to get back to society as early as possible to take care of your elderly parents.

I turn now to the background of the 2nd defendant. You are aged 33 and are single. You have six previous convictions, two for possession of dangerous drugs, one for doing and offering to do an act preparatory to trafficking in a substance suspected to be dangerous drugs in 2009, when you were sentenced to 6 months’ imprisonment...and three of assault occasioning actual bodily harm.

Approximately half a year before the commission of this offence, you were unable to have permanent employment and, for financial reasons, committed this present offence. You were told to bring the drugs and the keys to the premises and you would be given a reward of $1,000.

Mr Chang has rightly referred me to the leading tariff case on sentencing in ketamine, that is the case of Hii Siew Cheng. He has also referred me to various High Court authorities on trafficking in larger amounts of ketamine. In one of those cases, that is HCCC 322/2014, Hong Kong SAR v Kwok Chi Cheong, Madam Justice Barnes refers to a case of Sin Chung Kin [2013] 1 HKLRD at 627. I referred Mr Chang to another case which was a Court of Appeal case and not a Court of First Instance case, Hong Kong SAR v Chow Yau Ching, CACC 517/2012, whereby the Court of Appeal discussed and referred to Sin Chung Kin.

For the purposes of sentencing in this case, I will only refer to those two cases, that is Sin Chung Kin and Chow Yau Ching. In Chow Yau Ching, the court discussed the case of Sin Chung Kin. It referred to the guidelines as stated in Hii Siew Cheng. The last bracket in Hii Siew Cheng is over 1,000 grammes, 14 years upwards. In paragraph 15 of the judgment in Chow, the court there said:

“The Court of Appeal did not revise the sentencing guidelines in Sin Chung Kin. It was only because of the lack of further elaboration in Hii Siew Cheng on the appropriate starting point for trafficking in over 1,000 grammes of ketamine that the Court of Appeal, having considered the rate of enhancement of starting points for trafficking in large quantities of other dangerous drugs, such as heroin and 'Ice', made the observation that the appropriate starting points for trafficking in 2,000 grammes and 3,000 grammes of ketamine should, respectively, be no less than 18 years and 20 years.”

The above analysis is, with respect, correct.

Defendants, taking into regard the tariff guidelines in Hii Siew Cheng and also the cases of Sin Chung Kin and Chow I have referred to earlier, and taking into account the circumstances of the offence, the roles that you both played and the quantity of ketamine involved, 1st defendant, I am of the view that an appropriate starting point had you been convicted after trial would have been a sentence of 20 years’ imprisonment.

You have pleaded guilty, saved the court’s time and thus warrant the full one-third discount and the resulting sentence will be one of 13 years and 4 months’ imprisonment which you shall so serve.

D2, in following the guidelines as set down in Hii Siew Cheng, your amount of drugs falls within the fifth bracket, that is between 300 to 600 grammes. A sentence of 9 to 12 years’ imprisonment is appropriate as a starting point after trial. Taking into consideration the quantity of drugs, had you been convicted after trial, an appropriate starting point would have been one of 11 years’ imprisonment.

You have pleaded guilty to this offence. The full one-third discount is warranted and the resulting sentence is one of 7 years and 4 months’ imprisonment to which you shall be so sentenced.

D1 and D2, those are your sentences respectively on Charges 1 and 2.