HKSAR v. Leung Yin Shan, Karla

HCCC 468/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 468 OF 2014

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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 a charge of trafficking in a dangerous drug contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance. You have admitted that on 8 June 2014, at the Customs Arrival Hall, at Lok Ma Chau Control Point, Lok Ma Chau, you unlawfully trafficked in 7.86 kilogrammes of a powder containing 6.05 kilogrammes of ketamine.

On that day, you had arrived in Hong Kong from China, and at the Customs clearance, at about 4.45 pm, the X-ray scanning of your bag revealed the presence of suspicious objects. When your back was opened, found inside the bag were 32 plastic bags containing these drugs. The estimated retail value of those drugs was $927,480.

You immediately admitted that the drugs in question were “k chai”, and that you had been given those drugs from a male on the mainland and would be given a reward of $3,500 when you delivered them into Hong Kong.

The travel movement records reveals that you departed Hong Kong via the Lok Ma Chau Spur Line Control Point on that same day at 2.20 pm. So your trip to China would have been to go and collect the drugs and bring them back with you into Hong Kong.

You are aged 23 and will be turning 24 at the end of this week. You were born in Hong Kong. You were married in March of 2014, approximately three months before the commission of this offence. You retained education level up to Form 5. At the time of your arrest, you were unemployed. You are not a drug addict.

Mr Oliver Davies, your counsel, has given me a full understanding of your background and why you committed this offence. I have had regard to the letters written by the prison pastor, your parents and your brother. I have also seen the various certificates which had been submitted to this court in regard to your education accomplishments.

You are a girl of clear record. Mr Davies says that soon after your marriage in March, it broke down. You then associated with an undesirable peer, and as a result of that, he led you into the commission of this offence. All along, as your parents and brother have indicated, you have been a law-abiding good person and have been trying your best to educate yourself to a higher level.

Mr Davies has recognised that this is a very large amount of drugs and told this court that he has explained to you that you are looking at a very long term of imprisonment. He asked this court to be as lenient as possible, given that the facts show you were a very minor player, in that you were just a courier of these drugs.

Your early plea of guilty clearly shows your regret and remorse. You were not a naughty child, and it was really as a result of your unhappy marriage that your life spiralled downwards, and this other man got you involved in drugs.

Mr Davies has not submitted to me any cases relevant to the sentencing, but I have been assisted by the prosecutor, Mr Andrew Cheng by his submission of the case of Sin Chung Kin, that is [2013] 1 HKLRD 627. I am aware of that case.

I also brought to the attention of the counsel the case of HKSAR v Chow Yau Ching CACC 517/2012. Mr Davies did not address me further on these two cases, as he respected what was said therein.

The tariffs for ketamine were set out in the S for J v Hii Siew Cheng [2009] 1 HKLRD 1. In trafficking more than 1,000 grammes of ketamine would attract a starting point of 14 years or more. In the case of HKSAR v Sin Chung Kin, the court held:

“Where large quantities of ketamine were involved, although it was not possible to enhance the starting point proportionately, a reasonable and logical approach must be that the larger the quantity of the drug involved, the more severe the sentence would be.”

In the case of Sin Chung Kin, the ketamine trafficked in totalled 5.12 kilogrammes and the Court of Appeal there held that the starting point adopted by the trial judge of 22 years was not manifestly excessive.

The court also referred to the rates of enhancement of sentences in the cited cases of trafficking in large quantities of other types of dangerous drugs. The court stated that the appropriate starting point for trafficking in 2,000 and 3,000 grammes should be no less than imprisonment for 18 years and 20 years respectively.

Where more than 3,000 grammes of ketamine was involved, the starting point could exceed 20 years, although the increase in sentence should not be proportional to the increase in drug quantity. It would be for the court to pass such a sentence as was appropriate in the circumstances of the particular case.

In the case of Chow Yau Ching, a judgment by the Court of Appeal dated 4 November 2013, the court there considered Sin Chung Kin. The Court of Appeal there said the Court of Appeal in Sin did not revise the sentencing guidelines. It was only because of the lack of further elaboration in Hii Siew Cheng on the appropriate starting point for trafficking over 1,000 grammes of ketamine that the Court of Appeal considered the rate of enhancement of starting points for trafficking in large quantities of other dangerous drugs such as heroin and “Ice”, and made the observation that the appropriate starting point for trafficking in 2,000 and 3,000 grammes of ketamine should be no less than 18 and 20 years. The court there said the above analysis is, with respect, correct.

In this case, it is about 1,000 grammes more than that in Sin Chung Kin. Neither counsel nor myself have found any equivalent case similar to this very large quantity of ketamine.

However, I take guidance from the sentence passed in Sin Chung Kin for the amount of drugs in that case.

Defendant, after careful consideration, I take the view that a starting point, in this case, warrants 23 years’ imprisonment, had you been convicted after trial. There was an international element involved, in that you brought these drugs from China into Hong Kong. In following the case of HKSAR v Abdallah Anwar Abbas, the international element is an aggravating factor and calls for the enhancement of the starting point. For an amount above 1 kilogramme, the enhancement should be no less than 2 years’ imprisonment. This of course is six times that amount, nevertheless, I enhance your sentence by 2 years’ imprisonment, making a sentencing point of 25 years’ imprisonment, had you been convicted after trial.

Your plea of guilty warrants the full one-third discount, and the resulting sentence shall be reduced to one of 16 years and 8 months’ imprisonment, to which you shall so serve.