HKSAR v. Chum Pak Tung

HCCC 79/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 79 OF 2015

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

You admitted that on 27 May 2014, in Hong Kong, you unlawfully trafficked in 7.47 kilogrammes of a powder containing 4.70 kilogrammes of ketamine and 2.95 kilogrammes of a crystalline solid containing 2.82 kilogrammes of methamphetamine hydrochloride.

This plea was entered before the Eastern Magistracy on 13 February 2015 and you were committed to the Court of First Instance for sentence.

On 27 May 2014, at about 3.15 pm, Customs officers in plainclothes observed you acting suspiciously near a car in the vicinity of a roundabout at Hiu Ching House, Hiu Lai Court, Sau Mau Ping. You were stopped and searched. The vehicle was also searched. There was no contraband found. Upon inquiry, you informed the officers you lived at Hiu Ching House and gave the detailed address.

The officers then went up to the premises to keep watch. At about 3.30 pm, they saw a female who became known as your fiancée, leaving the premises, carrying a travel bag. Your fiancée was searched and the drugs as mentioned in the charge was found in the bag. She was arrested and cautioned. She informed the officers that the bag belonged to you and you had asked her to take the bag down when she went to buy things.

You confirmed the bag and the drugs belonged to you. Under caution, in a video-recorded interview, you stated that you were going to distribute those drugs to customers. A friend of yours, Yin Chai, referred customers to you for purchasing drugs and, in return, Yin Chai would give you $500 to $1,000 as a reward for each packet of drugs you delivered to customers.

The drugs were contained in 12 plastic bags which contained 'Ice' and 31 plastic bags which contained ketamine. The street value of the drugs was estimated at $911,240 for ketamine and $1,244,900 for the 'Ice'. The total value of the drugs was therefore, $2,156,240.

Defendant, you are now 29 years of age. You have a conviction for theft for which you were sentenced to 140 hours of community service, and one of possession of dangerous drugs for which you were given 4 months’ imprisonment suspended for 2 years in 2010. However, as you breached your Community Service Order, you were sentenced for breach of that Community Service Order to Rehabilitation Centre.

You were a transportation worker earning approximately $400 a day at the time of the offence. You lived with your aunt, fiancée and young son aged 3½. Your fiancée was, of course, the lady who was bringing the drugs to you on the day.

Your counsel, Mr Kwan Tong-lee, has mitigated on your behalf. I have taken into account all that he has had to say. He has also submitted to me three letters written on your behalf by your fiancée, your aunt and the chaplain of the Hong Kong SAR Correctional Services Department. They are all much in the same vein in that they are asking the court for leniency, describe you as a kind and devoted person and say that you deeply regret what you have done.

Your fiancée says that you miss your son very much and your son needs your care and love. Your aunt says that you will try your best to learn some skills whilst you are in prison to enrich your earning ability to help the family in future. The chaplain has said that he feels your improvement generally whilst you have been in prison.

Clearly, as Mr Kwan says, the offence to which you have pleaded guilty is a very, very serious offence. The amount of drugs which you have admitted to trafficking in is considered to be a very large quantity. Of course, the value of the drugs reflects that at over HK$2 million. You had two types of drugs for unlawful trafficking; they were the drugs of ketamine and 'Ice'.

In the case of Hong Kong SAR v Yip Wai Yin, CACC 80/2003, the Court of Appeal there stated that for sentencing in different quantities of drugs, a combined approach would usually be correct in taking a global view. So in the combined approach, the court looks at the overall quantity of drugs rather than the individual parcels, to take a global view. The methodology of this combined approach is to first calculate the applicable sentence for the more serious drug and then make an upward adjustment to take into account the significant quantities of the other drug.

In the case of Hong Kong SAR v Chan Yuk Leong, CACC 318/2013, the Court of Appeal there also held that the court should take the most serious drug and adjust it upwards for the other drug. The court there discussed three means of cross-checking whether the sentence was manifestly excessive. The first test was the absurdity test; the second test was the conversion test; and the third test was the ratio test.

In Chan’s case, the drugs involved were also ketamine and 'Ice'. At paragraph 14 of the judgment, Yuen JA, giving the reasons for judgment of the court, said the following:

“The conversion test

The second means of cross-checking is to apply the conversion test. This was the approach adopted by this court in Hong Kong SAR v Wong Kin Kau [2010] 4 HKC 443 at paragraph 11, where the court compared the tariffs applicable to different drugs to arrive at a conversion rate so that a single tariff for one drug could then be applied to the entire quantity seized.

'Ice' and ketamine are not directly comparable so how does one combine the two? In my view, when one looks at the tariff, one sees that 200 grammes of ketamine carries roughly the same sentence as 60 grammes of 'Ice', ie, a conversion rate of 5:1. On that basis, the applicant should be sentenced as if he had in his possession 120 grammes of 'Ice' or 600 grammes of ketamine. But in the case of 600 grammes of ketamine or 120 grammes of 'Ice', according to the guidelines, the sentence would have been about 12 years. There is no evidence that they had been mixed into a cocktail to enhance their potency, but the potential is there and is something we may take into account.”

As for the tariffs for ketamine, they were set out in The Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1. In this case, the ketamine is over 1,000 grammes and the sentence is 14 years and upwards. Hii Siew Cheng did not state further guidelines for over 1,000 grammes.

However, in the case of Hong Kong SAR v Sin Chung Kin, [2013] 1 HKLRD 627, the court there considered tariffs for trafficking in large quantities of ketamine. Where large quantities of ketamine were involved, the court held that the following rates of enhancement of sentence would be, for 2,000 and 3,000 grammes of ketamine, should be no less than imprisonment for 18 years and 20 years respectively. That is the starting point.

In Sin Chung Kin, the quantity of ketamine involved there was 5.12 kilogrammes. The Court of Appeal held that the starting point of 22 years adopted by the trial judge was not manifestly excessive. In taking into account the case of Sin Chung Kin therefore, if the defendant was sentenced for ketamine alone, the correct starting point after trial would be one of 21½ years’ imprisonment.

I turn now to 'Ice'. The guidelines for 'Ice' are laid down in the case of Ching Kwok Hung. The quantity of 'Ice' in this case, is 2.82 kilogrammes. The guidelines in Ching Kwok Hung for over 600 grammes is 18 years and upwards. In this case, it is beyond the sentencing guideline.

The guidelines for sentencing for offences of trafficking unlawfully in 'Ice' articulated in HKSAR v Tam Yi Chun, CACC 524/2011, has no application to this defendant since it postdates the commission of this offence. In that case, the court stipulated that, henceforth, the same tariffs as set out in Abdallah for sentencing for offences of unlawfully trafficking in a quantity of heroin and cocaine of 600 grammes and over were to be applicable to sentencing for offences of unlawfully trafficking in 'Ice'.

For the purpose of sentencing, Stock VP said in Tam Yi Chun, that the Abdallah guidelines did not apply to trafficking in very large quantities of 'Ice' and a slightly lower tariff was applicable at that level.

In the case of Hong Kong SAR v Nkosixolile Rose, CACC 331/2013, the Court of Appeal there considered sentencing in respect of trafficking in 3.3 kilogrammes of 'Ice'. The court there also had regard to the case of Tam Yi Chun and considered that 24 years’ imprisonment was the appropriate starting point for 3.3 kilogrammes of 'Ice'.

In applying the conversion rate of 5:1, following Chan Yuk Leung, 4.7 kilogrammes of ketamine would be converted to 0.94 of a kilogramme of 'Ice'. Adding that amount converted to 'Ice' to the 'Ice' in question, that is 2.82, that would make a total of 3.76 kilogrammes of 'Ice'.

If the tariffs as prescribed in Hong Kong SAR v Abdallah were to be applied, that would be approximately 25½ years’ imprisonment. However, as mentioned earlier, those guidelines are not applicable to this case and a slightly lower tariff is therefore applicable.

In those circumstances - defendant, if using the conversion rate, I will be sentencing you on a total of 3.76 kilogrammes of 'Ice'. I take as a starting point for that quantity, 24½ years’ imprisonment.

Your only mitigating factor is your early plea of guilty. For that, the sentence will be reduced by one-third and the resulting sentence which you shall serve will be one of 16 years and 4 months’ imprisonment.