HKSAR v. Lin Chi Yuen and Another

HCCC 208, 321 & 335/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 208, 321 & 335 OF 2014

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

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COURT: Defendants, as you know, you are each convicted of case 208. This involved the delivery to a taxi of 0.3 kilogrammes of mixture containing 0.13 kilogrammes of heroin hydrochloride and 0.03 kilogrammes of 6-monoacetylmorphine hydrochloride.

This was delivered to the person who appeared as the defendant in case 209. As we know, he pleaded guilty. I don’t think it is necessary to deal with the facts in any more detail than that, because that was rehearsed fully within the context of the trial.

Mr Lin, in respect of 321, you pleaded guilty to trafficking in dangerous drugs, namely 0.96 kilogrammes of powder containing 0.62 kilogrammes of ketamine. The facts of that case are that at about 5.20 pm on 26 February 2014, police officers at the Choi Yuen Kok police checkpoint saw you and another male walking from the mainland side of Chung Ying Street towards the checkpoint. You were intercepted. PW1 discovered an object in the left front of your jacket pocket. During the body search, you put your hand into your pocket and attempted to flee. You were subdued, and in the right front of jacket pocket, two transparent bags of suspected ketamine were found. From your right inner thigh, two further transparent of suspected ketamine. Arrested and cautioned, you remained silent.

Later, in a video-recorded interview under caution, you admitted to carrying the plastic bags to Fanling for $2,000. You admitted that you knew they contained ketamine. Later analysis showed you to be 0.96 kilogrammes of powder each containing 0.62 kilogrammes of ketamine. The estimated street value of the dangerous drugs was some $111,360. You admitted to five previous convictions on three occasions, one of which involved trafficking in dangerous drugs. You accept your antecedent statement. That tells me that you are 28, educated to Form 4, and unemployed. You are in good health. You take ketamine two to three times a week. You are single and reside with your family.

Those cover the offences that involve you, Mr Lin.

Mr Wong, you also pleaded guilty to a further offence, that being case number 335. You pleaded guilty, and were convicted of a single charge of traffic in dangerous drugs. This was on 3 October 2014. This involved 13.74 kilogrammes of solid containing 10.70 kilogrammes of ketamine. What happened is this. At approximate 18.30 hours on 29 January 2014, police stopped a van at the police checkpoint at the Sha Tau Kok Road. Inside the van were the driver and yourself. You were sitting in the passenger seat. You were searched and a transparent plastic bag of dangerous drugs were found in the left pocket of your jacket.

Arrested and cautioned, you replied, “Ah Sir, it’s known, not to waste your time, the ‘k chai’ on my person are for my own consumption. Besides, the contents of the two bags on the floor of the front passenger seat of the van have ‘k chai’. They are mine, it has nothing to do with the driver.” A red bag and a silver sports bag were found containing a 15 and 10 plastic bags respectively, containing dangerous drugs. Further cautioned, you stated you were delivering these for $10,000, and it has nothing to do with the driver.

In a later video-recorded interview, under caution, you expended on your earlier admissions, confirming the innocence of the driver, and stating you have yet to receive the $10,000.

Subsequent analysis revealed the dangerous drugs from your person to be 0.24 kilogrammes of solid containing 0.19 kilogrammes of ketamine. And the dangerous drugs found in the van was 13.5 kilogrammes of solid containing 10.51 kilogrammes of ketamine, the total being 10.70 kilogrammes. The street value of the dangerous drugs was estimated at $1,676,289.

You admitted to three plea of previous conviction and one subsequent conviction, none of which were related to dangerous drugs. You have also agreed with the contents of your antecedent statement. This confirmed you now to be 28, educated to Form 1 and unemployed at the time of arrest. Prior, you had worked as a waiter and transportation worker. You are single, living with your father, stepmother and younger brother. You suffer from urethritis. You admit you are a drug addict.

On behalf of you, Mr Lin, Mr Percy entered further mitigation. I won’t dwell on case 208, because we are agreed upon that, that the starting point urged upon me is one of, I would say, the sentence should be one of 10 years, which I agree with. He did point out that your part in this was relatively minor compared to the person who was convicted in 209. This was restricted to storing the heroin and delivering to a taxi, which subsequently stopped. Regarding 321, to which you pleaded guilty, this involved 620 grammes of ketamine, and also a technical importation, in that you moved it across the street from the mainland into Hong Kong. Very fairly, Mr Percy accepted the aggravating features in this case was that this offence was committed whilst on bail. However I have already point out that you had made two non-prejudicial statements, and that an extra 10 per cent discount would be appropriate. I tend to agree with that.

In respect of you, Mr Wong, again, Mr Chau, on your behalf, entered no mitigation in respect of the first offence, on the indication of the sentence of 10 years being appropriate. You reminded me that there is no international aspect to this case, which was accepted by the prosecution. However, we have to face up to the fact that 10.7 kilogrammes is a very large amount of drugs indeed. He referred me to several case where a starting point of 20 years had been taken. However, there is an aggravating feature, which is accepted in this case. This was committed whilst on bail.

I turn now to the various sentences.

Mr Lin, I will deal with you first. In respect of 208, you will be sentenced to 10 years’ imprisonment. In respect of 321, this is the case to which you pleaded guilty, an aggravating feature being that you were on bail at the time you committed this, a second aggravating feature being the international aspect and that you crossed the street in question, moving the drugs from the mainland into Hong Kong. I do take the view that this is somewhat technical in view of the importation method, and I agree with Mr Percy that the enhancement should not be as great as usual. I also apply an extra discount to this for the non-prejudicial statements that you have provided.

On applying the extra discount to this sentence, I take a starting point of, in this case, given the aggravating features of the commission of bail, of 13 years. There is a 6 months’ enhancement because of the international aspect. That gives a sentence of 13 and a half years. You are entitled to an immediate 33 per cent discount -- one-third discount, which reduces that to 108 months, which is 9 years. 9 years, as I indicated, there would be a further discount. That will be approximately 10 per cent. Therefore that will be reduced to 97 months, unless my mathematics are wrong, I am sure to be corrected, if I am correct, that is 8 years and 1 month.

So on the 1st offence, you go to prison for 10 years, on the 2nd offence, 8 years and 1 month. Given the principle of totality, 4 years will be consecutive, and 4 years 1 month will be concurrent. That is a total of 14 years.

Mr Wong, I take into account what was said on your behalf also. An added feature in respect of the 2nd charge is that the way that you made sure that the driver was blameless, and I give you credit for that for taking the blame upon yourself. However, there is an aggravating feature, that this was committed whilst on bail.

The following sentences will be imposed in respect of 208, 10 years’ imprisonment. In respect of 335, taking all matters into account, a starting point of 21 years, reduced to 14 years for your plea of guilty. Applying the principle of totality, 8 years will be consecutive and 6 years concurrent. That is a total of 18 years.