HKSAR v. Yiu Chun Yu

DCCC 501/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 501 OF 2016

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REASONS FOR SENTENCE

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1.The Defendant has been convicted on his own plea on one count of conspiracy to traffic in dangerous drugs, contrary to Sections 4(1)(a) and (3) and 39 of the Dangerous Drugs Ordinance, Cap. 134, and Sections 159A and 159C of the Crimes Ordinance, Cap. 200, the dangerous drugs being ketamine and cocaine, Count 2 on the indictment. He pleaded not guilty to Count 1 on the indictment of keeping a divan, contrary to Sections 35(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap. 134. The Prosecution offered no evidence on this count, and accordingly I dismissed this count.

2.The Summary of Facts in respect of Count 2 admitted by the Defendant discloses that on 20 November, 2015, police officers were conducting an anti-dangerous drugs operation in Tsim Sha Tsui.  At about 2.47 a.m. police officers entered a commercial unit on 12/Fl., No. 25 Hart Avenue, Kowloon. The Defendant and 8 other males were found inside the unit standing near the rear entrance. The police officers revealed their identity and showed the search warrant they had to the Defendant and the other males.  The Defendant said he was the person-in-charge of the unit. He also told the police officers that he was a wanted person, that a friend had placed some dangerous drugs in the unit and asked him to live at the unit and to sell the dangerous drugs to the customers at $400 per pack, and he would earn $50 for each pack he sold. He was arrested and cautioned, and repeated what he had initially told the police officers.  The unit was searched – a transparent re-sealable plastic bag containing 11.9 grammes of a solid containing 8.90 grammes of cocaine, a paper wrapping containing 0.54 grammes of a powder containing 0.18 grammes of ketamine, a transparent re-sealable plastic bag containing traces of a solid containing cocaine, a broken glass tube, a lighter and nine pieces of straw were found. The Defendant had on him 2 mobile phone and $33.80 in cash. The estimated market price of the dangerous drugs found on the premises at the material time was $13,372. In a subsequent cautioned interview, the Defendant admitted that he was a wanted person and had nowhere to live. His friend ‘Ar Wai’ had asked him to assist in the unit. ‘Ar Wai’ told him he could live at the unit and provide dangerous drugs to others at the unit. He was brought to the unit on the night of 18 November, 2015.  ‘Ar Wai’ brought 8 packets of dangerous drugs to the unit and put them at the rear entrance on 19 November, 2015 – the Defendant was told that these were dangerous drugs and told to try to sell them to customers.   He did not know the other males in the unit that were there at the time of his arrest. They had entered the unit themselves and probably had a key to the unit and would purchase dangerous drugs in the unit.  The Defendant sold each packet of dangerous drugs for $400, and earned $50 for each packet of dangerous drugs that he sold.  He had sold all the 8 packets ‘Ar Wai’ had brought to the premises and the proceeds of about $3,000 had been passed to ‘Ar Wai’.  He was told by ‘Ar Wai’ that he would pay him later.  The Defendant believed that the 8 packets of dangerous drugs that he had sold was cocaine.

3.By his plea, the Defendant has admitted that he conspired with other persons unknown in Hong Kong to traffic in dangerous drugs,   namely ketamine and cocaine. I was satisfied that the facts admitted by the Defendant supported the charge, and accordingly I convicted him on Count 2.

Previous convictions

4.The Defendant had 18 previous convictions in 10 court appearances, none of which are similar to the present offence. However, he does have 2 previous convictions for trafficking in dangerous drugs in 2009.  His most recent conviction was on 04 December, 2015, for an offence of possession of dangerous drugs, for which he was sentenced to the DATC. I am informed by his Counsel that he has now been released from the DATC.  This is also the conviction for which he was a wanted person, as he told the police officers.  I note from the criminal record that a warrant of arrest was executed in relation to this conviction.

Antecedent Statement

5.The Antecedent Statement was read into the record by the Prosecution. The Defence took no issue with the contents save in respect of paragraph 2(h) – Counsel submitted that the Defendant was separated and not divorced.  This was accepted by the Prosecution.

6.The Antecedent Statement discloses that the Defendant was born in Hong Kong and is now aged 44 years. He has completed Secondary 5 education in Hong Kong. At the time of his arrest he was a renovation worker.

7.I have carefully considered all that has been urged by Counsel on behalf of the Defendant as well as the contents of the mitigation letter written by the Defendant.

Mitigation

8.Mr. Ng on behalf of the Defendant submitted that the Defendant was now aged 44 years and separated.  He had separated from his wife when his daughter, who is now aged 18 years, was 3 years old. He had custody of the child and during the times that he was incarcerated, his relatives took care of her. She is now aged 18 years and working.  Counsel submitted that he offended because he was a wanted person at the time, and had nowhere to live, and he was also a drug addict and needed to support his habit.  He went to his friend and he was asked to sell the dangerous drugs in return for a reward and a place to stay.  The offence was for an extremely short period – a matter of hours – as the drugs were brought to the premises on the night of 19 November, 2015, and the police executed the search warrant in the early hours of 20 November, 2015.  The dangerous drugs involved were cocaine and ketamine, but as the quantity of ketamine was very small, as evidenced by the ketamine found on the premises, it could be disregarded in determining sentence.  He accepted that the sentencing tariff for trafficking in up to 10 grammes of cocaine is 5 years’ imprisonment.

Sentence

9.The maximum sentence on conviction upon indictment for trafficking in dangerous drugs is a fine of $5 million and imprisonment for life.

10.The Defendant’s greatest mitigation is his plea of guilty, which reflects remorse on his part. There is little other mitigation of weight before me. As has been pointed out by the courts on many previous occasions, personal and family circumstances of a defendant will offer little mitigation in serious cases of drug trafficking, which call for severe deterrent sentences in order to protect the public.

11.The Court of Appeal has laid down clear sentencing guidelines for trafficking in cocaine and ketamine  ( see Attorney-General v. Rojas [1994] 1 HKC 342 where it was held that the sentencing guidelines for heroin set out in R v. Lau Tak Ming & Others [1990] 2 HKLR 370 are applicable to cocaine, and the Court of Appeal held that for trafficking in up to 10 grammes of cocaine, the sentence is 2 to 5 years’ imprisonment and Secretary for Justice v. Hii Siew Cheng [2009] 1 HKLRD 1 for ketamine, where the Court of Appeal held that for trafficking in up to 1 gramme of ketamine, sentence is within the sentencer’s discretion).

12.The quantity of cocaine seized in the premises is a plastic bag containing 8.90 grammes of cocaine, a second plastic bag containing traces of a solid containing cocaine as well as a paper packet containing a powder containing 0.18 grammes of ketamine. The estimated market value of these at the material time was $13,372.  Apart from what was seized on the premises at the time the search warrant was executed, the Defendant has admitted under caution to selling another 8 packets of dangerous drugs  that he believed was cocaine, for $400 a packet. It was admitted that the average retail price of solid powder containing cocaine at the time was $1,075 per gramme.  He had sold 8 packets and the proceeds was about $3,000 which he had passed to ‘Ar Wai’.  In determining sentence, I have considered this.

13.In cases involving trafficking in more than one type of drugs, the Court of Appeal has set out two different approaches, namely the combined approach and the individual approach (see HKSAR v. Yip Wai Yin & Another [2004] 3 HKC 367).  The combined approach is used by calculating what would be the applicable starting point for the larger quantity or the most potent dangerous drugs.  Here, it would be the cocaine. The court should then adjust that starting point upwards to take into account the ketamine. In my view that would be the most appropriate method to determine the appropriate starting point here. Mr. Ng for the Defendant submits that the Court should disregard the ketamine here as the quantity is small.  I am unable to accept this.  Given that cocaine is the more serious drug in terms of quantity and potency, I shall refer to the sentencing tariff for cocaine.  In my view the appropriate starting point in the circumstances of the offence and of the Defendant would be 5 years’ imprisonment for the cocaine.  I would enhance the starting point by a further 6 months as more than one type of dangerous drug is involved, and this can be viewed as an aggravating factor, as a wider market can be catered for.

14.The appropriate starting point is therefore 5 years’ and 6 months’ imprisonment (i.e. 66 months). He is entitled to the usual one-third discount for his plea.  Save for the plea of guilty, there is little other mitigation before me to warrant any further discount.  The Defendant is sentenced to 3 years and 8 months’ imprisonment (i.e. 44 months’ imprisonment).