HKSAR v. Yip Sai-kin

HCCC 467/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 467 OF 2015

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REASONS FOR SENTENCE

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1.The defendant has pleaded guilty to a single count of trafficking in a dangerous drug. It was alleged in the particulars of the offence that the defendant on 11 August 2015 unlawfully trafficked in 575.9 grammes of powder containing 478.5 grammes of ketamine at his residence, Room 3413, Mei Lok House, Mei Tin Estate, Shatin, New Territories.

2.Following the defendant’s arrest for this offence, he was brought before the Magistrate’s Court where eventually on 4 December 2015 he was committed to the Court of First Instance for trial. Subsequently, the defendant’s case was fixed for trial to take place on 7 December 2016 with a pre-trial review fixed for 6 October 2016. 

3.In a letter dated 3 October 2016, Ms Vivian Wong, counsel for the defendant, informed the Court that the defendant would plead guilty to the offence as charged.  She requested that certain inquiries be conducted by the police in relation to a matter that could form part of the defendant’s mitigation.  This was repeated at the pre-trial review on 6 October 2016 and the prosecution undertook to make inquiries in relation to the matter.  The defendant’s case was fixed for plea and sentence on 7 December 2016. 

4.Ms Wong in a letter dated 6 December 2016, set out in detail the subject matter of the mitigation together with supporting material for the Court’s consideration.  At the hearing on 7 December 2016, the defendant pleaded guilty to the count and a summary of facts was submitted as agreed between the parties.  The subject matter of the mitigation was an issue of contention between the parties and the case was further adjourned to 13 December 2016 for inquiries to be made by the prosecution in relation to it.  At the further hearing, the prosecution requested further time to make inquiries and the case was adjourned to 7 January 2017. 

5.In the meantime, Ms Wong in a letter dated 3 January 2017 further addressed the Court in relation to the subject matter of the mitigation that the defendant wished to rely upon.  She gave a background to the matter and explained that after an evaluation of the material it was decided not to proceed with the matter.

6.The facts agreed by the defendant giving rise to the offence are as follows.  On 11 August 2015, plain clothes police officers were on duty at the Mei Tin Estate in Shatin.  They observed the defendant entering Mei Lok House and a short time later leaving the building.  They intercepted the defendant because they suspected he was involved in dealing in drugs.  They searched the defendant and found two packets of ketamine in the front left pocket of his trousers.  After he had been arrested and cautioned, he said to the police “give me a chance”.  He was subsequently taken to his residence at Room 3413 where a search took place.  Inside a computer system was found 25 transparent plastic bags each containing ketamine, and 50 large and 30 small resealable plastic bags.  On a cabinet in the living room, the police found 2 sets of electronic scales, one large and one small.  After these items had been discovered, the defendant was again arrested and cautioned and he responded by saying “There is so much ketamine.  Being caught with so much do I have any chance?”  He admitted that the electronic scales were used by him to divide the drugs into smaller packets. 

7.The total quantity of drugs was 575.9 grammes of powder containing 478.5 grammes of ketamine.  The retail street value of the drugs at the time of the offence was $74,291.10. 

8.Subsequently, the defendant was interviewed under caution.  He accepted responsibility for the drugs that had been uncovered.  He explained that he intended to give the two bags of ketamine found on him to another person.  He acknowledged that when he was seen going into Mei Lok House, it was to collect the two bags of ketamine in his flat.  He said he bought the ketamine from a person with the nickname Fei Chai.  He was afraid to disclose further details about Fei Chai as he feared revenge.  He said that after selling all the ketamine his reward would be $1,000. 

9.The defendant is 23 years of age and was born in mainland China.  He was educated here in Hong Kong and left school after completing Form 6 secondary education.  His parents had divorced when he was young and he lived with his mother at the residence where the drugs were found.  I am informed that at the time of his arrest, he was working as a salesman at his uncle’s telephone trading business in Shenzhen.  He claimed that he was not a drug addict and that he did not have any triad associations.

10.This is not the first time the defendant has been in trouble with the law.  He has two previous convictions for possession of dangerous drugs.  The first took place in July 2012 when he was put on probation for 12 months.  However, he was caught again in possession of dangerous drugs and on 2 May 2013 he was ordered to attend a Drug Addiction Treatment Centre.  The probation order was discharged as a consequence. 

11.Ms Wong submits on behalf of the defendant that he should be treated as leniently as possible given his relatively young age and genuine remorse.  She has submitted letters from the defendant’s mother and uncle.  They both described the defendant as a caring and bright young person who shows a lot of promise, but unfortunately because of his circumstances he had sought to make some easy money.  The mother explains that the defendant needed money to marry his pregnant girlfriend but who has now left him, having terminated the pregnancy.  It is clear to me despite the defendant’s denial of being addicted to drugs that he has been tied up in the drug community and more than likely as a user of drugs who in this instance also sought to trade in them.  The defendant is a tragic figure and unfortunately one that comes before the courts on a regular basis: a young person who for whatever reason, whether it be a loss of self respect or a feeling of insecurity, has resorted to the use of or trading in drugs.  The pattern is all too familiar in that the offences become more frequent and more serious. 

12.As stressed by Ms Wong, the strongest mitigating factor in the defendant’s favour is that he pleaded guilty and sought to cooperate with the authorities.

13.The narcotic content of ketamine involved in the present case falls within the band as set out in the tariff case of S of J v Hii Siew Cheng [2009] 1 HKLRD 1, of 300 to 600 grammes with a corresponding sentence of 9 to 12 years’ imprisonment.  I will adopt a starting point of 10 years’ imprisonment which is slightly less than would otherwise be imposed but I do so because of his relatively young age and potential to turn a new leaf and live a decent life.  I will discount the starting point by one-third for the defendant’s plea of guilty to 6 years and 8 months’ imprisonment. The defendant is accordingly sentenced to 6 years and 8 months’ imprisonment.

Mr Shaun P Kelly, counsel on fiat, for HKSAR

Ms Vivian Wong, instructed by Anthony Kwan & Co., assigned by Director of Legal Aid, for the defendant