HKSAR v. Chan Hoi Suen and Another
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HCCC 461/2013 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CRIMINAL CASE NO 461 OF 2013 -----------------
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--------------------------------- COURT: Both of you, D1, Chan Hoi-suen, and D2, Tam Ka-yee, have pleaded guilty to the single count on the indictment, being trafficking in dangerous drugs, namely 309.32 grammes of a powder containing 183.22 grammes of ketamine and 38.54 grammes of a solid containing 27.69 grammes of cocaine. Both of you have admitted the respective Summary of Facts prepared by the prosecution that relates to each of you individually. These facts are as follows. As regards D1, Chan Hoi-suen, on 20 July 2013, at about 11 pm, police conducted a licence check on Sun Hotel, situated at 4th floor, Wah May Building, 211 Portland Street, Mongkok. During the check, officers knocked on the door of Room 11 and defendant, D1, Chan Hoi-suen, opened the door. D1 appeared very nervous when he saw the police, so the officers demanded entry into the room. When they went into the room, the officers saw a female, Tam Ka-yee, D2, sitting on the bed. They also noticed an electronic scale and two bundles of empty, small transparent resealable bags placed on top of a computer desk near the door. Further, the officers saw four larger transparent plastic bags containing suspected dangerous drugs lying conspicuously on the bed with nothing covering them. D2 was sitting next to these four bags. When the contents of these four large plastic bags were analysed, the bags were found to contain the following:
The total amount of ketamine seized was 183.22 grammes and the total amount of cocaine seized was 27.69 grammes. Both ketamine and cocaine are dangerous drugs under the Dangerous Drugs Ordinance, Cap 134. The estimated street value of all the dangerous drugs seized was HK$74,579. The above facts are the same regarding D1 and also D2, Tam Ka-yee. Now I return to the facts relating to D1 alone. Both D1 and D2, who it was later learned was D1’s girlfriend, were arrested at the scene for trafficking in dangerous drugs. Under caution at the scene, D1 stated that “The dangerous drugs belonged to ‘Ah Tik’. It was Ah Tik who asked me to come up here for fun,” he said. In a subsequent video-recorded interview, D1 claimed that at about 12 pm that day, he had bumped into an old friend called Ah Tik. Ah Tik had told D1 to rent the hotel room so that they could have fun together. D1 explained that by ‘having fun’, he meant taking dangerous drugs. D1 admitted that he then rented Room 11 at the Sun Hotel. He said Ah Tik arrived at the room some time later and stayed and chatted for about one hour and then left. D1 claimed that Ah Tik came back to Room 11 at about 7 pm the same day together with D2. D1 said he did not know D2 before this incident. After Ah Tik and D2 arrived, D1 went to the toilet as he had a stomach problem and had no idea what Ah Tik and D2 did in the room whilst he was away. When D1 returned to the room, Ah Tik had already left, so D1 sat and chatted to D2 until the police suddenly arrived on the scene. D1 further told police that he only knew that there were dangerous drugs in the room when the police came. He also admitted that he had been abusing ketamine and cocaine for seven to eight years. Police made inquiries with the receptionist of the Sun Hotel. The receptionist said that D1 came alone and rented Room 11 that day at about 3 pm and paid $600 daily room rate. The receptionist also told police that D2, also alone, arrived some time after 4 pm and asked to be taken to Room 11 and that neither D1 nor D2 left the room up to the time the receptionist went off duty at 9 pm. During the time the receptionist was on duty, no one else went into or requested to go to Room 11. Guests were not given their own room keys as all room keys were kept by the receptionist, so if someone left the room, that person would have to ask the receptionist on duty for the key to get back into the room. Inquiries later revealed that D1 had telephoned his girlfriend, D2, on the afternoon in question and asked her to join him in Room 11. D1 started the process of weighing and repacking larger quantities of dangerous drugs, namely cocaine, into smaller packets. D2, on her arrival, assisted D1 in this weighing and repacking process. The dangerous drugs were put into smaller packets for the purpose of sale to strangers. Before any repacking of the ketamine took place, the police arrived at the door and found all the dangerous drugs and packaging paraphernalia in the room. D1 and D2 were the only people in Room 11 that day and the only people dealing with the dangerous drugs. D1 was in possession of all the dangerous drugs seized for the purpose of trafficking. The Summary of Facts regarding D2 is as follows. Apart from the facts that I mentioned before which apply to D2 as well, here are the additional facts. Both D1 and D2, who it was later learned was D1’s girlfriend, were arrested at the scene for trafficking in dangerous drugs. D2 initially told police at the scene that, earlier that day, she had bumped into an old friend, Ah Tik, who asked her to help look after and carry dangerous drugs for him for a reward of $3,000. D2 agreed because she had no money. She was told by Ah Tik to go to Room 11 of the Sun Hotel. D1 was present in the room. Later, Ah Tik arrived at Room 11 with a plastic bag containing the dangerous drugs seized and an electronic scale and some resealable plastic bags. When D1 was in the toilet, Ah Tik gave the drugs to D2 and told her he would call her later and tell her where to deliver the drugs to other people. Ah Tik then left. D1 also said that she had been a ketamine abuser for about four years. Police made inquiries with the receptionist of the Sun Hotel and the receptionist said that D1 came alone and rented Room 11 that day at about 3 pm. The receptionist also told police that D2, also alone, arrived some time after 4 pm and asked to be taken to Room 11 and that neither D1 nor D2 left the room up to the time the receptionist went off duty at 9 pm. During the time the receptionist was on duty, no one else went to or requested to go to Room 11. Guests were not given their own room keys as all room keys were kept by the receptionist, so if someone left the room, that person would have to ask the receptionist on duty for the key to get back into the room. Subsequently, D2 admitted to the police that, on 20 July 2013, she arrived at Room 11 of the Sun Hotel alone, late afternoon, after receiving a call from D1. She found D1 alone in Room 11 in the process of repacking larger quantities of dangerous drugs into smaller packets. D2 then assisted him in this process by working alongside D1 weighing the cocaine and putting 0.24 of a gramme into the small resealable plastic bags for sale. After the cocaine repacking had been completed, the pair had a chat and then went downstairs for a meal some time after 9 pm, after the receptionist had gone off duty. D2 and D1 returned to Room 11 shortly before 10.30 pm and then D1 took out two large plastic bags of ketamine and some more small resealable plastic bags together with the electronic weighing scale. Before any repacking of the ketamine took place, D1 had a stomach problem, so he went into the toilet and soon after he returned, the police arrived at the door and found all the drugs and packaging paraphernalia in the room. D2 has now admitted to the police that she had lied at the time of her arrest and that, in fact, Ah Tik did not exist and that only she and D1 had been dealing with the dangerous drugs together on the day of their arrest. D2 explained how she started having a relationship with D1 in mid-June 2013 and said the reason she had lied was to protect her boyfriend, D1. However, her mother had visited her in prison and as she was facing a dangerous heart operation a few days later, her mother told D2 to look after the family if the mother died and also to confess all her wrongdoings and tell the truth about what she had done. D2’s mother died some weeks after her heart operation so D2 told police she then wanted to explain what had happened in relation to the dangerous drugs incident in Room 11 as she had promised her mother she would do so. She was in possession of the dangerous drugs seized from Room 11 for the purpose of trafficking. According to the sentencing guidelines in respect of trafficking in ketamine established in Secretary for Justice v Hii Siew Cheng [2008] 3 HKC 323, the appropriate sentence for trafficking in 50 to 300 grammes of ketamine is 6 to 9 years of imprisonment. Regarding cocaine, according to Attorney General v Rojas [1994] 1 HKC 342, the sentencing guidelines for heroin are applicable to cocaine. The Queen v Lau Tak Ming & Others [1990] 2 HKLR 376 established the guidelines for trafficking in heroin and with the modification referred to in HKSAR v Abdallah Anwar Abbas [2009] 2 HKC 197, trafficking in 10 to 50 grammes of heroin should be punishable with 5 to 8 years’ imprisonment. As said, this applies to cocaine. Mr Tse, for D2, has referred me to HKSAR v Ko Ka Hing [2009] 4 HKLRD 856 for the proper sentencing approach. Here, the quantity of ketamine involved was 183.22 grammes and the appropriate sentence, mathematically, should be around 7 years and 7 months. The quantity of cocaine involved in this case is 27.69 grammes which would, mathematically, attract a sentence of 6 years and 4 months. Although two kinds of dangerous drugs and two different quantities were involved, the appropriate sentence is not reached by adding the respective sentences together to form a whole. If one takes the total quantity as that in respect of ketamine, then for 210.91 grammes, ie, 183.22 grammes plus 27.69 grammes of ketamine, the appropriate sentence should be around 7 years and 11 months. However, if the total quantity were treated as cocaine, then it would attract a sentence of not less than 12 years. Neither is appropriate in the circumstances. When considering the appropriate sentence in totality, I have to take into account that the trafficking was in two different kinds of drugs which would better cater for customers’ needs as an aggravating feature. I start with the ketamine which involved a larger quantity of 183.22 grammes. This would, as I said before, individually attract a sentence of about 7 years and 7 months. This starting point is adjusted upwards to 8½ years to reflect the aggravating feature and the additional 27.69 grammes of cocaine. This is the starting point I adopt for the offence for both D1 and D2. D1 has a relatively long record of involvement in dangerous drugs. However, I do not think I shall pass a longer sentence on him for his previous criminal record since this is the first time he is convicted of trafficking. His personal circumstances, on the other hand, do not provide any reason for mitigating sentence. The only mitigating factor in respect of D1 is his guilty plea for which he is entitled to a discount of one-third. In the result, a sentence of 5 years and 8 months is reached and that is the sentence I pass on him. Regarding D2, she admitted her guilt in trafficking upon being interviewed after arrest. She has not only pleaded guilty but has also offered assistance to the authorities which has eventuated in D1’s plea of guilty. I consider that but for the contents of her two non-prejudicial statements that she has provided to the prosecution and her willingness to testify against D1 as expressed in those statements, D1 would not have changed his stance which he had steadfastly maintained up to two days before the last hearing on 16 April 2015, resulting in his pleading guilty now. I consider that D2 should be given a higher discount than the one-third available to all those who have pleaded guilty. Similar to D1, her personal circumstances do not provide much mitigation, though I take into account the letter she has written to the court and her father’s letter showing that she is most remorseful and her family is very supportive of her. I have considered the authorities referred to in chapter 4 ‘Assistance to the Authorities’ of Cross & Cheung’s Sentencing in Hong Kong, 6th edition, pages 31 to 66. I consider that in all the circumstances of this case, I am prepared to be very lenient and adopt a sentence of 4 years and 9 months’ imprisonment as appropriate for D2, and that is the sentence I impose on her. |
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