HKSAR v. Chan Yuk Yin

HCCC 169/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 169 OF 2015

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REASONS FOR SENTENCE

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1.On 24 April 2015, the defendant pleaded guilty at Eastern Magistrate’s Court to one count of trafficking in a dangerous drug consisting of 995 g of a crystalline solid containing 972 g of methamphetamine hydrochloride and one count of possession of a dangerous drug consisting of 0.56 g of a powder containing 0.47 g of ketamine.  He was committed to the Court of First Instance for sentence on 27 May 2015.  His sentence was adjourned by agreement of the prosecution to 25 August 2015 in order to assist the authorities with certain inquiries.  I am told by the prosecution that his assistance has been of no value to them.

2.The facts that the defendant agreed in acknowledging his culpability in these offences were as follows.  At around 5:15 pm on 19 September 2014, the defendant returned to Hong Kong from Mainland China via the Lowu Control Point.  He was stopped at customs clearance by customs officers and was initially uncooperative with them.  He was eventually searched and found wrapped around his waist underneath his clothes by cling film were three plastic packets containing a total of 507 g of a crystalline solid containing 495 g of methamphetamine hydrochloride, commonly known as Ice.  Upon his arrest and caution he stated that the substance found was Ice.

3.A further search revealed that he was wearing tights underneath his jeans and wrapped around his thighs by cling film were more drugs.  On his right thigh was one plastic packet containing 256 g of a crystalline solid containing 249 g of Ice and on his left thigh was one plastic packet containing 232 g of a crystalline solid containing 228 g of Ice.

4.He was again cautioned and acknowledged that the substance found wrapped around his thighs were Ice.  He said the Ice had been tied on him by a friend from Hong Kong called Ah Kwai and that after he got through customs clearance he was to go to Shatin railway station with the drugs where he would be contacted by Ah Kwai.  He was to receive a reward of $5000.

5.The next day he was taken to his home where a search was conducted.  Found inside the flat were various items and paraphernalia for the taking and distribution of drugs.  On one of the items were found traces of Ice and in one plastic bag a small quantity of ketamine was found.  He claimed that the ketamine did not belong to him and that, except for the item with traces of Ice which belonged to him, the rest belonged to Ah Kwai.

6.In a video recorded interview, he admitted that he had lived at the flat for over a year and he was the only person who had access to it.  He said he paid a monthly rental of $2,100 and had been unemployed for half a year.  He said on 19 September 2014, he met up with Ah Kwai in a guesthouse in Shenzhen who he had known for more than a month.  They both took Ice together at the guesthouse.  After he woke up, Ah Kwai gave him five bags of Ice to be wrapped around his body with cling film.  As he owed Ah Kwai money, he agreed to bring the drugs to Hong Kong for a fee of $5,000. When he got to Shatin he was to call a number which had been given to him earlier by Ah Kwai.

7.The item that was found with traces of Ice was bought by him earlier for $40 which he used to consume the drug.  He claimed that the unused plastic zip lock bags were brought to his home by Ah Kwai a week prior to package drugs.

8.The estimated street value of the drugs involved was $399,990.

9.The defendant is now 25 years of age.  His parents are divorced and his mother and sister live in Mainland China.  He came to Hong Kong at the age of 7 in 1997 with his family and they lived in a subdivided unit until he was about 22.  Since 2011 he has mainly worked as a waiter at a restaurant earning between $8,000 to 12,000 a month.

10.The defendant has no criminal record in Hong Kong.

11.It appears the defendant assisted the authorities in a controlled delivery operation on 19 September 2014.  He made a telephone call to Ah Kwai and informed him that he was going through customs clearance and would contact him again later when he arrived at Jordan, Kowloon.  He was later taken to a location in Jordan where he made several telephone calls but the other party claimed he did not know the defendant and refused to come to collect the goods.

12.Mr Geoffrey Booth, who appears on behalf of the defendant, in his comprehensive and helpful written submissions, points out that whilst the controlled operation was unsuccessful, the defendant nevertheless assisted the authorities and cooperated with them in an attempt to capture the others involved.  He also points out that the defendant has provided information to the authorities, which although has not proven useful, was a genuine attempt on his part to assist them.  The case law is clear on this issue.  To receive a reduction to a sentence to be imposed for assistance rendered to the authorities by the provision of information, such information needs to be appropriately evaluated and proved to be reliable and useful. 

13.In the circumstances of the present case, the defendant is not entitled to any reduction to his sentence for the claimed assistance he provided the authorities by the provision of information which did not prove to be of any practical value.  He is, however, entitled to a reduction to his sentence for the assistance that he rendered to the authorities in participating in the controlled delivery.  Even though it was unsuccessful, it was no fault of the defendant.  He clearly cooperated with the authorities by genuinely participating in the operation under the control of the authorities and by doing so put himself at risk.  There was no suggestion that he was insincere or playacting during the course of his involvement in the operation.  I will accordingly take this into account when sentencing the defendant.

14.Mr Booth submits that the defendant started taking Ice at the age of 22 out of curiosity and under peer influence.  He says that the defendant owed Ah Kwai about $20,000.  Part of it was borrowed from him in the form of cash and the rest was a football gambling debt.  He says that because of his debt to Ah Kwai he got involved in assisting him bringing the drugs to Hong Kong.  He says he was driven by desperation for a small sum of money.  This provides no excuse for his involvement in such a serious crime.  Whilst the defendant is a young person who has hitherto not been in trouble with the law, his personal circumstances and explanation for getting involved in this serious crime provide little if no mitigation on his behalf.

15.The total narcotic content of drugs involved in this offence was 972 g of Ice.  The tariff guideline for trafficking in this quantity of Ice is set out in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691.  It fixes a tariff for a narcotic content of over 600 g of Ice of 18 years’ imprisonment and upwards but provides that for very large quantities of over 600 g the principles laid down in HKSAR v Abdallah [2009] 2 HKLRD 437 should apply.  That case was concerned with addressing the appropriate tariff guidelines for very large quantities of hard drugs.  So far as material, it fixes a tariff guideline for 600 to 1200 g of 20 to 23 years’ imprisonment.  I therefore impose a starting point in the circumstances of the present case of 21 years’ imprisonment.

16.There is an international element to this offence, in that the defendant brought the drugs into Hong Kong from Mainland China, and therefore according to the authorities this warrants an enhancement of the sentence.  I will enhance his sentence by 1 year and 6 months.  See HKSAR v Chung Ping Kun, CACC 85/2014, 2 July 2014, unreported.

17.As I have said, I adopt a starting point of 21 years’ imprisonment for the quantity of Ice involved which I have enhanced to 22 years and 6 months’ imprisonment for the international element.  The defendant is entitled to a one third discount for his plea of guilty and together with his cooperation with and assistance to the authorities in participating in the controlled delivery I will increase the discount he is to receive to his sentence to 40 per cent.  This will result in a sentence of 13 years and 6 months’ imprisonment.

18.The defendant also pleaded guilty to possession of a small quantity of ketamine for which I adopt a starting point of 9 months’ imprisonment and will reduce it by one third for his guilty plea to 6 months’ imprisonment.  Bearing in mind the substantial prison sentence that I have imposed upon the defendant for the trafficking offence, and applying the principles of totality, I order that this sentence run concurrently with the sentence I have imposed for the trafficking offence.

19.Accordingly, the overall sentence to be imposed on the defendant and the sentence he is required to serve is 13 years and 6 months’ imprisonment.

Mr Lenny Cheng, SPP (Ag) of the Department of Justice, for HKSAR

Mr Geoffrey Nigel Booth of Haldanes, solicitor advocate assigned by the Director of Legal Aid, for the defendant