HKSAR v. Hui Yau Tat

HCCC 497/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 497 OF 2016

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

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COURT:

Hui Yau-tat, on 23 December 2016, you pleaded guilty to one count of trafficking in dangerous drugs, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, and by so doing, you admitted trafficking in 7.266 kilogrammes of ketamine on 15 April 2016 in the area of Tin Shui Wai.

When you were stopped by the police outside of the Tin Shui Wai MTR station, you were carrying 20 packets of ketamine, weighing a total of 4.94 kilogrammes in a shoulder bag and you had a further 24 packets of ketamine, weighing 5.92 kilogrammes in a red cool box. In all, you were carrying 10.860 kilogrammes of a substance which had a narcotic content, as I said, of 7.266.

Upon arrest and caution, you tried to suggest that you had been delivering dangerous drugs because you were in debt. Later, in interview, you said that you had met someone in a bar who had offered you a way to make quick money and that you had been asked that day to go and collect the “K Chai” and pass it on to others for what was to be an HK$8,000 reward.

In the circumstances of this case, the reason for your offending does not go to your credit, as Mr Chan accepted. I doubt very much if it is true but it will not affect in any way the sentence that I must pass upon you.

The street value of the dangerous drugs that you were carrying that day and which you were trusted with, was $1,466,100 and you asked the court to believe that it had simply been left at the entrance of a primary school for you to collect. I doubt that also. But in any event, you have accepted that you were fully responsible for your actions.

Although you are a Hong Kong identity holder, I note you say you were born in Fujian and came to Hong Kong when you were very young. Yet, you do say that you received your junior middle school education in China which would be up to Form 3 here. Mr Chan tells me that your mother abandoned you from an early age and your father, in his letter, accepts that he failed to offer personal parental guidance and was well aware that you had fallen into bad company.

But you are now an adult and you must take responsibility for your own actions. You chose to remain in contact with criminals and you chose to make money in this manner instead of having a steady job. You are 26 years of age and yet you were unemployed at the time of arrest. There is more than enough honest work to be had in Hong Kong if you bother to go and look for it. You are not a drug addict so you were not doing this to feed your drug habit. This was, and I do accept this, as you said, quick and easy money.

You knew the risk you were taking, Mr Hui. This is not the first time you have been before the courts for trafficking and you have previously served a sentence of 2 years and 10 months’ imprisonment, so you are not a first time offender, albeit that I will not take that into account when I calculate the sentence against you.

Mr Chan, on your behalf, has very sensibly accepted that there is no mitigation which can inevitably reduce the sentence that I have to pass.

In the case of HKSAR v Hii Siew Cheng [2009] 1 HKLRD 1, it provides sentencing guidelines for trafficking in ketamine of up to 1 kilogramme, at which point, sentencing is at the discretion of the court. I bear in mind that this authority suggests that a starting point for trafficking in up to 1 kilogramme of ketamine after trial, is 14 years. You have admitted to trafficking in over seven times that quantity.

In HKSAR v Sin Chung Kin [2013] 1 HKLRD 627, it was suggested by the Court of Appeal that the starting point for trafficking in 2,000 to 3,000 grammes should be no less than 18 and 20 years respectively. So where more than 3,000 grammes is involved, a starting point after trial could exceed 20 years. But the increase in sentence does not necessarily have to equate to the increases in quantity on the same mathematical basis as before. It is for the court to pass a sentence which is appropriate in all the circumstances, as was said HKSAR v Lau Tak Ming [1990] 2 HKLR 370 and Attorney General v Ching Kwok Hung [1991] 2 HKLR 125.

But in Sin Chung Kin, the trial judge had adopted a starting point of 22 years for 5.12 kilogrammes of ketamine and the Court of Appeal had not found that to be manifestly excessive. So although the range of sentencing in weights above 3,000 grammes are within the court’s discretion, there does need to be a meaningful distinction when there is a meaningful increase in weight.

I have considered, as Mr Chan urged me to, and I am grateful for him providing it to the court, the judgment of DHCJ D’Almada Remedios (as she then was) which I note included an inevitable aggravating feature of importation which the learned judge, I am sure, would have had in her mind when fixing her starting point, as well as a number of other mitigating features advanced by counsel on that occasion, including the fact that the defendant in that case was a girl; she was younger than yourself with a clear record and she had come from a good family but had endured a difficult marriage at a young age.

You were found in possession of 7.266 kilogrammes of ketamine. You have a previous conviction for trafficking and have served a term of imprisonment for it and yet you carried on with this criminal work. And you are single with no other responsibilities and more than capable of finding lawful employment, and yet you had none.

I consider that a starting point of 24 years after trial would be appropriate in all the circumstances of this case and there is absolutely no doubt in my mind that you are well aware of the amount, the weight of the dangerous drugs you were carrying that day, because you checked the drugs and you estimated their weight before picking them up and you physically carried them yourself to find a taxi for Kowloon.

There being no other mitigation, Mr Hui, that can reduce the sentence I am about to pass, save of course for the one-third discount which you are entitled to because of your early plea, you will go to prison for a period of 16 years.