HKSAR v. Chung Chi Kit and Another

HCCC 371/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 371 OF 2014

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REASONS FOR SENTENCE

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1.On 29 August 2014, the 1^st defendant and 2^nd defendant were committed for trial in the Court of First Instance on separate drug offences in relation to events that occurred on 1 April 2014. The 1^st defendant faced a single count of trafficking in 3.95 kg of a powder containing 2.65 kg of ketamine (Count 1). The 2^nd defendant faced a single count of trafficking in 2.2 kg of a powder containing 1.84 kg of ketamine (Count 2) and a single count of possession of 2.28 g of a powder containing 1.96 g of ketamine (Count 3).

2.The trial of the two defendants was fixed for 28 July 2015 with 8 days set aside together with a pre-trial review fixed for 9 June 2015.  By letter dated 10 December 2014, the solicitors acting on behalf of the 1^st defendant indicated that he would plead guilty and accordingly on 19 March 2015 he pleaded guilty to Count 1.  His case was adjourned to the conclusion of the 2^nd defendant’s trial as he indicated he would cooperate with the Customs Department and make a statement about the case and give evidence for the prosecution against the 2^nd defendant.  In the meantime, on 9 June 2015, the 2^nd defendant pleaded guilty to Count 2.

3.The facts admitted and agreed to by the 1^st defendant on his plea of guilty are as follows.  At about 6.00pm on 1 April 2014, a team of plainclothes customs officers, who were patrolling at Langham Place, Mong Kok, observed the two defendants entering the same toilet cubicle in the men’s toilets on the ninth floor of the building.  The 1^st defendant was carrying a backpack and holding a red recycle bag which appeared to be heavily laden. About 15 minutes later, the 1^st defendant came out of the toilet cubicle and was immediately intercepted by the customs officers. The 2^nd defendant was also intercepted.  The customs officers searched the 1^st defendant’s backpack and found 12 resealable plastic bags containing ketamine and a plastic bag containing 20 smaller resealable plastic bags of ketamine.  The total quantity of ketamine found on the 1^st defendant was 3.19 kg of a powder containing 2.65 kg of ketamine.  The estimated retail value of the drugs at the time of seizure was $376,420.

4.The 1^st defendant was arrested and upon caution stated that the substances in the bags were drugs which he helped the 2^nd defendant to deliver.  He said he would be given $300 for delivering the bags.  The customs officers found in the toilet cubicle three empty red recycle bags, the size and appearance of one of them was similar to the one carried by the 1^st defendant earlier.

5.The 1^st defendant is 20 years of age with a clear record.  He is single and at the time of the offence was living with his family in a public housing estate at Wong Tai Sin.  Both his parents work and he has a younger brother attending secondary school.  He attained secondary school education which he completed in 2011 but it would appear that he has not had steady employment since then and he was unemployed at the time of the offence.  It is claimed he is not a drug abuser and it is surprising that he got involved in such a serious crime for the mere payment of $300 to deliver the bags.  He has by way of mitigation, his young age, his clear record, background and his plea of guilty.  I will bear these matters in mind and appropriately adjust his sentence as fixed by the tariff cases. 

6.It was also submitted that he committed this offence because at the time he was out of work and in financial difficulties. He did not inform his parents of the difficulties he was experiencing and because of his circumstances got involved with the 2^nd defendant. The 1^st defendant and his family and friends have submitted letters to me from which I can glean that he is basically a well liked and decent young man who has gone through a period of hardship because of his inability to secure employment.  He has strong family support and they have expressed deep concern about him.  It is clearly apparent that he is a young and impressionable person who got involved in this crime because of the bad influence of others.  Whilst this does not provide an excuse for what he has done, it is pertinent that he is basically a decent young man who is deeply remorseful for the crime that he has committed. 

7.The sentencing regime for trafficking in ketamine is governed by guidelines laid down in S for J v Hii Siew Cheng [2009] 1 HKLRD 1 and for large quantities of the drug further guidance has been provided in HKSAR v Sin Chung Kin [2013] 1 HKLRD 627 and HKSAR v Chow Yau Ching [2014] 2 HKLRD 639.

8.In the case of Hii Siew Cheng, the Court of Appeal provided guidelines for sentencing after trial for traffickers in ketamine and fixed a sentence of 14 years upwards for over a 1,000 g.  In accordance with the sentencing cases I have mentioned and given the circumstances of the case and his background, I adopt a starting point for 2.65 kg of ketamine of 18 years’ imprisonment.  This starting point is slightly lower than suggested by the tariff cases but I have borne in mind his young age, background and clear record.  

9.The 1^st defendant is entitled to a reduction of one third for his guilty plea but he is also entitled to a further reduction for his assistance to the authorities and preparedness to give evidence against the 2^nd defendant who, as I have mentioned, has pleaded guilty in the meantime.  I have considered the statement that he made to customs officers and the usefulness of it at the trial of the 2^nd defendant if it had proceeded.  It directly implicated the 2^nd defendant in trafficking in dangerous drugs and his offer to testify more than likely caused the 2^nd defendant to plead guilty.  He should not lose the benefit he would have otherwise received if he had testified and accordingly, I will reduce his sentence further by an overall discount of 45%.  Accordingly, he is sentenced to 10 years’ imprisonment.

Mr Andrew Cheng, SPP of Department of Justice, for HKSAR

Mr Yeung Shak Nung, counsel instructed by Lawrence Y.W. Ng & Co., for the 1^st defendant