HKSAR v. KO AH YAT

HCCC 538/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 538 OF 2014

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HKSAR
v
KO Ah-yat

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Before: DHCJ Wilson Chan

Date: 16 July 2015 at 10.34 am

Present: Mr Cheng Chi-hang Andrew, SPP of the Department of Justice, for HKSAR
Mr Kwan Hang-fan Jasper, instructed by Peter K H Wong & Co, for the accused

Offence: Trafficking in a dangerous drug (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 has been convicted on his own plea on one charge of trafficking in a dangerous drug.

The Particulars of Offence provide that on 8 June 2014, at the Arrival Hall, Lok Ma Chau Boundary Control Point, Lok Ma Chau, NewTerritories, in Hong Kong, the defendant unlawfully trafficked in a dangerous drug, namely 0.97 kilogramme of a crystalline solidcontaining 0.96 kilogramme of methamphetamine hydrochloride, commonly known as ‘Ice’.

The Summary of Facts admitted by the defendant provides that at 11 pm on 7 June 2014, police officers carried out an anti-dangerousdrug operation at the Arrival Hall of Lok Ma Chau Boundary Control Point.

At around 12:45 am on 8 June 2014, an Immigration officer saw that the defendant was having his immigration checks at a counterin the arrival hall. The police were notified accordingly. Suddenly, the defendant turned around and walked in the opposite directionto the queue. The police officer followed behind and asked the defendant to go back and complete the immigration checks. The defendantignored and said he needed to go to the toilet. He looked nervous and had his hands placed at his waist.

He then ran towards Coach Stop No 11 and bumped his body against the railing next to the coach stop. He was seen making a throwingaction with his hand. The defendant then turned round and walked towards the arrival hall again. He was soon intercepted.

Later, it was found on the ground where the defendant had bumped his body against the railing two cling-film-wrapped objects, eachcontaining a packet of suspected ‘Ice’ drug.

A personal search revealed that the defendant was wearing a girdle on his waist inside his top.

Travel movement records from the Immigration Department shows that the defendant had last departed from Hong Kong via Lok Ma ChauBoundary Control Point at 7:29 pm on 7 June 2014.

The two cling-film-wrapped objects were subsequently found to be a total of 0.97 kilogramme of a crystalline solid containing 0.96kilogramme of methamphetamine hydrochloride. The estimated street value was HK$552,900.

The defendant now admits and accepts that he knowingly imported into Hong Kong the dangerous drugs seized in this case.

By way of personal background, the defendant is 63 years of age. He was born in November 1951, in Hong Kong. He received educationup to primary 4 level. He has been unemployed for more than 10 years and at the time of the offence, he received public assistanceof around $3,000 a month. He had been living alone in a public housing unit. His family members include his mother and two youngersisters. The defendant has a 62-year-old wife living in China.

The defendant has a total of 46 previous convictions, nine of which were drug-related, with two being trafficking in dangerous drugs.The last occasion was in 2006.

By way of mitigation, Mr Jasper Kwan urged the court to take into account the defendant’s age and to pass a sentence that is aslenient as possible in the circumstances.

The defendant has been convicted on one charge of trafficking in a dangerous drug, namely 0.97 kilogramme of a crystalline solidcontaining 960 grammes of methamphetamine hydrochloride. The offence was committed on 8 June 2014, one day before the Court of Appealhanded down its Judgment in the case of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, which sets out revised tariffs for trafficking in the ‘Ice’ drug.

In the circumstances, the applicable tariffs are those set out in the case of Attorney General v Ching Kwok Hung [1991] 2 HKLR 125. In the Ching Kwok Hung case, for trafficking in over 600 grammes of methamphetamine hydrochloride, the proper sentence to be imposed after trial was heldto be 18 years’ imprisonment and upwards.

In HKSAR v Abdallah [2009] 2 HKLRD 437 at paragraph 42, the Court of Appeal held that if there is an international element in the trafficking of drugs, there should bean enhancement of the starting point in sentence. In HKSAR v Chung Ping Kun, CACC 85/2014 (Judgment of the Court of Appeal dated 2/07/2014), a case decided on the Ching Kwok Hung tariffs, the Court of Appeal held at paragraph 9 that, as a broad guideline, the level of enhancement for trafficking in between500 and 1,000 grammes of ‘Ice’ should be 1 year to 2 years.

In the present case, a three-stage process is thus involved in sentencing. First, to take a starting point for the quantity of thedrug involved. Second, then to add to that such additional term as is warranted by the international factor. Finally, to reduce thesentence from the starting point on account of mitigating factors, including of course the defendant’s guilty plea.

In my view, following the principles set out above and based on the quantity of the narcotic involved, the proper initial startingpoint for sentence in the present case should be 19 years’ imprisonment. One and a half years should be added to that by way ofenhancement for the international element.

I note that the starting point indicated above is in line with the sentence upheld by the Court of Appeal in HKSAR v Lai Yung Ngai, CACC 335/2008 (Judgment dated 16/04/2010).

Finally, I shall give the defendant a full one-third discount for his guilty plea, which was entered at the earliest opportunityat the Magistrates’ Court. This results in a sentence of 13 years and 8 months’ imprisonment (ie, (19 years + 1½ years)x 2/3).

Accordingly, the defendant is sentenced to 13 years and 8 months’ imprisonment.