HKSAR v. Yiu Wing Shan

HCCC 52/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 52 OF 2016

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

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COURT: Ms Yiu, you were charged with two counts of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, and you have today pleaded guilty to one count of possession and one count of trafficking in dangerous drugs, and you indicated that you would enter those pleas on the last occasion you were before the court, which was on 12 January 2017, when you appeared before Madam Justice Poon.

These offences took place on 16 August 2015 and 7 October 2015 and it is now March 2017. You have been in custody since October 2015. Your plea has therefore been entered at quite a late stage. Nevertheless, your offending took place before the Court of Appeal’s decision in Abdou Maikido Abdoulkarim [2016] 5 HKLRD 1. So even though you have entered your plea of guilty at a comparatively late stage, you will still be afforded a discount of one-third off the eventual sentence after first taking into account the appropriate starting point and any aggravating and mitigating factors which are appropriate in your case.

You have pleaded guilty to being in possession of 13.2g of ‘Ice’ on 16 August 2015 and to trafficking in 26.2 grammes of 'Ice' on 7 October 2015.

Under Count 1, you were found to be in possession of 13.2 grammes of ‘Ice’ which was in a resealable plastic bag wrapped up in tissue when you were stopped in a public street in the early hours of the morning on 16 August 2015, in Argyle Street. You told the police at the time of your arrest that it was for your own consumption and that you had paid $1,500 for it, although the street value is believed to be in the region of $4,442.

That is why you were charged at that time with trafficking in those drugs. You are very fortunate that the prosecution has taken a lenient view and accepted that you were in simple possession of those drugs. You were later released and placed on police bail.

The drugs under Count 2 were found in your handbag on 7 October 2015. On that occasion, you were holding twice as much and the retail value of that ‘Ice’ was $8,658. On that occasion, you frankly told the police that you were delivering the ‘Ice’ for someone called ‘Ah Wing’ for a reward of $500.

Given that you had been apparently full and frank with the police at the time of your arrest, Ms Yiu, I am somewhat surprised that it has taken until now for you to enter a plea.

In any event, the guideline authority for simple possession of ‘Ice’ is HKSAR v Mok Cho Tik, CACC 165/2000. Having considered all that was said in that case, reviewing the authorities and taking into account other matters which I will refer to, I consider the appropriate starting point for simple possession of 13.2 grammes of ‘Ice’, after trial, is 12 months.

But there would, in this case, also be a latent risk that you would have shared the ‘Ice’ socially or, more likely, sold it to others to feed your habit as you had only recently been released from DATC and had no real income other than the suggestion that you distributed leaflets for HK$3,000 to HK$4,000 a month. For the latent risk, in the circumstances of this case and taking into account the starting point that I have already considered appropriate of 12 months, I would enhance the sentence by just 6 months. That is on the lenient side but it reflects my view of other matters to which I will refer and which I feel should be marked by a small penalty.

There is no other mitigation available to you, unfortunately, and there is the aggravating feature of both your recent release for exactly the same type of offending and your attitude to the DATC disposal for which you were recalled twice. Taking that into consideration, I enhance your sentence by a further 3 months.

I have also considered your two previous convictions for possession and would have been inclined to enhance your sentence by a further 3 months. However, this is the first time you have been in prison and therefore I will not do so on this occasion. But Ms Yiu, you cannot expect such leniency in the future if you continue to offend.

That makes a total of 21 months on Count 1 and after the one-third discount, the sentence will be 14 months’ imprisonment.

The guideline authority for trafficking in ‘Ice’ is HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. For trafficking in 26.2 grammes of ‘Ice’, the range of sentencing is between 10 to 70 grammes of ‘Ice’ which carries a sentence of between 7 to 11 years. The starting point after trial would be just over 8 years, but you had committed this offence whilst on police bail which is an aggravating feature and so the starting point after trial will be enhanced by 3 months and the total before mitigation or discount will be 8 years and 3 months.

If you had had all of the dangerous drugs under both counts for the purpose of trafficking in it, the starting point after trial would have been 9 years according to Tam Yi Chun, not allowing for any of the aggravating features which I have mentioned above and by which I enhanced your sentence overall by 6 months. But these were two wholly separate offences, the first taking place just weeks after your release from DATC, the second whilst on police bail for the first.

You have shown, Ms Yiu, a complete disregard for the law and for the rules by which we expect a citizen to abide and whilst you should have been clean immediately upon release in June 2015, you willingly went back to your old ways in the knowledge that you would not be treated so leniently on the next occasion. I do understand you have had a very difficult young life and that you had little or no proper parental support. That must have been difficult for you. But everyone has to choose their own path in life. You are now 21 and it is time for you to do so.

Trafficking in dangerous drugs is a very serious offence for which there is little mitigation. Even that which I have heard today and which I have read from the letter provided to me from the pastor, Pastor Ling, it shows you are by no means unintelligent and that you are remorseful. But you knew what you were doing, Ms Yiu, and you did it to feed your habit.

If you do not have a serious reconsideration of your life, you are going to spend a great deal of it in prison. Please stop and think about your life to date. Do not throw your life away because others have let you down. There will be opportunities for further education within the Correctional Services system to improve the quality of your life and your job prospects when you are released.

On the 1st count, for being in possession of 13.2 grammes of ‘Ice’ just weeks after release from DATC, you will go to prison for 14 months.

On the 2nd count, for trafficking in ‘Ice’ whilst on police bail for the first offence, taking into account the one-third discount, you will go to prison for 5 years and 4 months.

Count 2 will be served wholly consecutively to Count 1 and you will go to prison for a total of 6 years and 6 months.