HKSAR v. LI HOI CHIU AND ANOTHER

HCCC426/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 426 OF 2011

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HKSAR
v
Li Hoi-chiu (A1)
Cheung Chak-fung (A2)

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Before: Hon Macrae J

Date: 5 January 2012 at 11.20 am

Present: Mr P J Power, SADPP of the Department of Justice, for HKSAR
Mr Hung Kin-man, Samson, assigned by the Legal Aid Department, for the 1st Accused
Mr Chase Pun, instructed by Messrs Mike So, Joseph Lau & Co., for the 2nd Accused

Offence: (1) Trafficking in a dangerous drug (A1) (販運危險藥物)
(2) Trafficking in a dangerous drug (A2) (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: This is a depressingly familiar story of two young men caught up in the trafficking of large quantities of ketamine having no doubtbeen enticed by others more deeply involved in this trade and by the lure of quick and easy money.

D1 is not the first young person to be caught smuggling ketamine over the border with the Mainland. Nor is D2 the first 16 year oldto come before me in the last few months charged with trafficking in large quantities of ketamine.

Defendants trafficking in this particular drug are getting younger and bolder and the courts must be vigilant to send out a clearmessage that there can be no exceptions, save perhaps in cases of extreme youth, to the tough sentencing policy of these courts whenit comes to trafficking in dangerous drugs.

The operative amount of ketamine narcotic for sentencing purposes in this case is 570 grammes of ketamine which under the guidelinesin Secretary for Justice v Hii Siew Cheng [2009] HKLRD 1, brings it within the 300 to 600 grammes bracket for which a sentence of 9 to 12 years’ imprisonment is appropriate after trial.

In my judgment the proper starting point in the circumstances of this case, particularly in the light of the amount of ketamine concerned,is one of 11½ years’ imprisonment.

In view of the international element involved in bringing drugs over the border from the Mainland into Hong Kong that starting pointwill, so far as D1 only is concerned, be enhanced by 6 months, making an overall starting point in the case of D1 only of 12 years’imprisonment.

I might add that if there had been any suggestion that the 1st defendant knew beforehand the young age of the 2nd defendant to whomhe was to pass the drugs, I would have taken a higher starting point, but fortunately for him there is no clear evidence to thateffect.

In the case of D2 where there is no international element, the starting point will remain as 11½ years’ imprisonment.

In the case of the 1st accused, he has pleaded guilty at the first available opportunity, namely the Magistrates’ Court, to thecharge against him. Notwithstanding his criminal record, he is entitled to a full one-third discount which brings his sentence downto 8 years’ imprisonment.

There is, however, an additional factor in his favour and that is that he voluntarily participated at the behest of Customs officersin a controlled delivery in accordance with instructions he had earlier been given. Such cooperation seems to me to be somethingwhich should be encouraged and merits a further reduction of sentence.

In the circumstances I am prepared to reduce his sentence by 1 further year, resulting in a sentence in his case of 7 years’ imprisonment.

In the case of the 2nd accused, as I have said, the starting point in respect of his sentence does not need to be enhanced becauseso far as he is concerned there is no international element involved in the offence.

However, he does not, like the 1st accused, have the advantage of any further discount as a result of cooperation, such as participatingin any controlled delivery. He, too, pleaded guilty at the first available opportunity and for that he is entitled to a full one-thirddiscount. That reduces his sentence from 11½ years’ imprisonment to 7 years and 8 months’ imprisonment.

I have to say in his case that I am particularly impressed by not only his rather poignant letter to the court and to his parentswhich recognises the full extent of how much he has let himself and his parents down, but also by the letter written by the principalof the last school he attended which I have found particularly helpful.

Both letters confirm me in the view, which I expressed earlier, that he was someone enticed by the lure of easy money into this offenceby others more deeply involved in the ketamine trade. Indeed, that is what he appears to have told the Customs officers who interviewedhim.

I do not have much room for manoeuvre where guidelines are concerned but I am prepared in the light of the view I have formed as tohis involvement in this offence, his antecedents and his clear record, to shave a further 3 months off his sentence, resulting ina sentence of 7 years and 5 months’ imprisonment.

Accordingly, I sentence the 1st accused to a sentence of 7 years’ imprisonment and I sentence the 2nd accused to a sentence of 7years and 5 months’ imprisonment.