HKSAR v. Cheung Chong Wah

HCCC 288/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 288 OF 2014

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REASONS FOR SENTENCE
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1.The jury by its verdict found the defendant guilty of trafficking in the dangerous drugs as charged. The drugs were packaged in 20 iPhone 5S boxes and in a manner to give the impression that they contained mobile phones. It would have been extremely difficult if not impossible to distinguish them from originals. They were sealed and wrapped in transparent cellophane wrapping. It was through the purported services of the defendant as a taxi driver that those behind the drug syndicate involved in the distribution of these drugs would deliver and supply the drugs to various persons. The defendant identified the people behind this scheme as Ah Wing, Ah Ming and Hung Gor. He did not know their full names or addresses. He claimed he met them at a restaurant.

2.The defendant willingly and knowingly participated in the distribution and supply of the drugs in order to pay off a debt.  The distribution of the drugs through the defendant was cleverly arranged and executed.

3.The defendant explained in the two video recorded interviews the arrangement for the distribution of the iPhone boxes. He said the arrangement had been carried out on two previous occasions and he discussed in detail how it operated and worked.  He is not being punished for the two previous occasions he distributed iPhone boxes for that is not the offence for which he was charged and convicted.  This information is being relied upon for the purpose of understanding how the arrangement with the defendant for the distribution and supply of the drugs was implemented. 

4.He was given a mobile phone via which he would be contacted by someone who would instruct him to go to a location to pick up the iPhone boxes which contained the drugs from a contact there.  In the present case, two black plastic bags containing 20 iPhone boxes were given to him by Ah Wing who immediately left.  In explaining the system used by them, the defendant stated that normally the iPhone boxes would be placed on the front passenger seat when collected.  He would receive further calls from someone who would instruct him where to go to pick up a customer.  The customer would get into his taxi and take the quantity of iPhone boxes as arranged while he pretended he was conveying a paid fare.  The customer was then drop off at some other location.  This way it would appear that the defendant had picked up a paying customer who was being taken to a particular destination and by letting the customer take the iPhone box himself there was no physical contact by him with the box. 

5.The quantity of drugs consisted of 3,780.48g of ketamine and 0.19g of ICE.  For the purposes of sentencing the defendant for this quantity of drugs, I will not take into account the very small quantity of ICE. 

6.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 Ng Hon Keung [2012] 1 HKLRD 1017; HKSAR v Chow Yau Ching [2014] 2 HKLRD 639 and HKSAR v Sze Kin Wang [2014] HKEC 1195.  In the latter case, Lunn VP, giving the judgment of the court, said in relation to the guidelines at paragraph 21:

“The guidelines for sentencing in cases of unlawful trafficking in ketamine articulated in the judgment of the court in the Secretary for Justice v Hii Siew Cheng provide for the imposition of sentences of 14 years’ imprisonment and upwards for unlawful trafficking in amounts over 1,000 grammes. In HKSAR v Sin Cheung Kin this Court observed that, where large quantities of ketamine were involved, although it was not appropriate to enhance the starting point proportionally, nevertheless “the larger the quantity of drug used, the more severe the sentence will be.” The Court went on to suggest that unlawful trafficking in 2,000 and 3,000 grammes of ketamine should attract sentences of imprisonment of 18 and 20 years respectively. However, as was made clear in the judgment of this Court in HKSAR v Chow Yau Ching and HKSAR v Sin Cheung Kin the Court was not purporting to lay down new guidelines for sentence.”

7.Having regard to the guidelines and the comments on sentencing in cases of unlawful trafficking of ketamine, a starting point for this quantity of ketamine would be in the range of 21 years’ imprisonment.

8.The question is whether there are any mitigating factors that warrant a reduction of this sentence.  The defendant has previous convictions for drug offences.  He clearly has a drug abuse problem as seen by his criminal record.  He has been given numerous opportunities to address his drug addiction by being ordered to attend a drug addiction treatment centre but unfortunately for him it has been without success.  He has five previous convictions for possession of dangerous drugs.  His first two convictions in May 1994 and July 1996 resulted in fines.  His last three convictions in August 2000, August 2007 and June 2010 resulted in Drug Addiction Treatment Centre orders.  There was a conviction in December 2002 for going equipped for stealing for which he was sentenced to 18 months’ imprisonment. 

9.As we learnt through the course of the trial, the defendant is 57 years of age, divorced, with a middle-aged daughter.  He was educated to Primary School level.  At the time of the offence he was in a long term relationship with a woman who has, I am told, come to rely on him for financial and emotional support.  I am also told that she will struggle to survive without him.  It is unfortunate that he did not think of her when he got involved in the distribution of drugs for the drug syndicate in this case.  He has worked as a taxi driver for the last 20 years earning at the time of this offence, $14,000 to $15,000 per month.  It would appear, however, he sought to supplement his income by delivering the drugs in iPhone boxes for which he said he was to get $400 for each box delivered.

10.In my observations of the defendant when he testified during the trial, he came across as a simple and gullible person who would be easily influenced by others. 

11.It is clear from the facts of this case that he played an important and useful role in the distribution and supply of the drugs.  Through the cover of his taxi and the pretence of picking up passengers, drugs were distributed to others.  It was undoubtedly devised to conceal and avoid detection of the supply of drugs that were taking place.

12.It is also clear that others have used the defendant, taking advantage of his drug addiction and his desperate circumstances.  There were others behind the scheme far more sinister and calculating than the defendant.  It appears the defendant was used by the operators of the drug syndicate but he nevertheless was a willing participant. 

13.It is urged upon me that a long sentence on the defendant who is 57 years of age would be particularly harsh and may mean that he will spend the rest of his life in prison.  That is the sad consequence of being involved in serious crime, in particular drug trafficking, for which long terms of imprisonment are a known form of punishment. 

14.Bearing in mind the background of the defendant and the role that he played in this crime, I sentence him to 21 years’ imprisonment. 

Mr Philip Ross, counsel on fiat, for HKSAR

Mr Woon Jee Quan Freddy, instructed by Eli K. K. Tsui & Co., assigned by Director of Legal Aid, for the defendant