HKSAR v. CHENG LUN HUNG

HCCC169/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 169 OF 2010

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HKSAR
v.
Cheng Lun Hung

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Before:

Deputy High Court Judge Stuart-Moore

Date:

14 July 2010 at 9.43 am

Present:

Mr Harish Melwaney, SPP of the Department of Justice, for HKSAR
Mr David Rex Boyton, instructed by Au & Associates, for the Accused

Offence:

Trafficking in dangerous drugs (販運危險藥物)

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: The defendant, aged 50, pleaded guilty when he appeared in the Eastern Magistrates’ Court on 28 May 2010 to face a chargeof trafficking in 1.71 kilogrammes of a powder containing 1.36 kilogrammes of ketamine.

The offence was committed on 16 November 2009 in Wong Tai Sin and was detected as a result of an anti-narcotics operation being carriedout in the Choi Hung Estate. The defendant was seen to be carrying two plastic bags as he got out of the taxi. He was intercepted.His bags were searched and the ketamine was duly discovered.

The defendant admitted assisting others to deliver ‘K chai’. He also had in his possession over $20,000 and two mobile telephones.

In a later interview with the police, the defendant admitted importing the drugs from the Mainland. He did this through the controlpoint at Sha Tau Kok on the promise of a reward of $7,000. The ketamine itself was worth $198,360 at street prices.

The only mitigation, as Mr Boyton has very properly accepted, is the defendant’s plea of guilty. He has a previous conviction forthe possession of dangerous drugs for which he was sent to prison in 2008 for eight months. Plainly this sentence provided no deterrentwhatsoever.

The present offence is, aggravated by what is termed ‘the international element’ albeit, I bear in mind that this is only knownbecause the defendant owned up to it.

Now, Mr Boyton’s very helpful research for which I am grateful, reveals that in Li Kam Cheong (HCCC150/2009), the sentencing judge appeared to have thought that the importation of drugs was an aggravating factor only in casesinvolving heroin and cocaine because the guideline case for sentencing traffickers of ketamine and ecstasy, which is Hii Siew Cheng [2009] 1 HKLRD 1, made no mention of enhancement on this account, whereas in the later decision in HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437, a guideline case for the sentencing of heroin and cocaine traffickers who have trafficked in very large quantities indeed, thereis specific mention of importation or exportation of those drugs as an aggravating factor.

However, in HKSAR v Tam, Gary HCCC101/2010, decided on 20 May 2010, where again there was an international element, a different approach was adopted. There thejudge was dealing with a case on 20 May which was almost identical, as it happens, to the present case in terms of the quantity ofketamine, which was 1.35 kilogrammes, that had been brought in by the defendant in that case from the Mainland. I propose to citewhat Macrae J said on that occasion:

“However, the fact is that you did successfully bring the drugs into Hong Kong from the Mainland, across the border and throughCustoms, that afternoon. That does, to my mind, on the authority of HKSAR v Abdallah Anwar Abbas (CACC304/2008), aggravate the starting point or enhance the starting point for sentence. I assess that enhancement by virtue of thatfact at 1 year’s imprisonment in addition to the starting point adopted in your case.

One must remember that for the offence of trafficking in very large quantities with an international element, which includes traffickingacross the border with the Mainland, the court in Abbas considered that enhancement of sentence would not normally be less than 2 years’ imprisonment. However, the court in Abbas was dealing with new guidelines in respect of heroin from 600 grammes and 20 years’ imprisonment upwards, and sentences for heroinare significantly greater than sentences for ketamine, particularly at the very large quantity levels. So in my judgment, the appropriateenhancement by virtue of the international trafficking element for this quantity of ketamine would be 1 year.

So far as the starting point is concerned, the guidelines in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1 run out at 1,000 grammes, or 1 kilogram. It was held that for over 1,000 grammes, or 1 kilogram, a sentence after trial should be14 years upwards. Here, I am dealing with 1.35 kilos of ketamine.

In my view, the appropriate starting point in this case for that amount would be 15 years’ imprisonment, which I enhance, for thereason I have just stated, by 1 year, making an overall starting point of 16 years’ imprisonment.”

In fact ultimately what the judge did was to impose, as Mr Boyton pointed out, a sentence of 10½ years’ imprisonment which reflecteda slightly greater discount than a third. It cannot, in my view, be right that international couriers of only certain kinds of drugsare treated differently to others. All couriers, not merely those carrying heroin or cocaine, commit a more serious form of the offencewhen they traffic across international boundaries, including the Mainland’s boundary, or are involved in schemes of traffickingwhich cross other boundaries.

In my opinion, the approach adopted by Macrae J was correct. It surely cannot be right that the basic approach to heroin and cocainetraffickers involved in international trafficking can be differently regarded for traffickers in other forms of drugs. The principleshould be the same.

Now, I do note in HKSAR v Tsui Chi Wah (HCCC14/2010), which was decided on 3 March 2010, that Deputy High Court Judge A Chan provided a useful summary of two other cases.These were HKSAR v Law Siu Fai (HCCC122/2009) and HKSAR v Kwok Tung (HCCC158/2009) where starting points of 15 years’ imprisonment were taken for 1.287 kilogrammes and 1.236 kilogrammes of ketamine,respectively. The case of Tsui Chi Wah itself was concerned with 1.69 kilogrammes of ketamine brought in from the Mainland and the judge took a 16 year starting point inthat case.

So returning to the present case, I consider that in all the circumstances a starting point of 15½ years would be appropriate whichincludes a six month element of enhancement for trafficking across the border with the Mainland. And, giving a full discount of athird to reflect your timely plea of guilty, this is reduced to 10 years and 4 months’ imprisonment.