HKSAR v. Yim Ho Long

HCCC 247/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 247 OF 2016

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

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COURT:

Yim Ho-long, you have pleaded guilty today to two counts of trafficking in dangerous drugs contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

This matter concerned an incident that occurred on 10 December 2015. The criminal charges against you were committed to this court on 20 May 2016 and it is now 30 November 2017. Despite what you said under caution and in your video recorded interview, this case was originally listed for trial. You then sacked one Legal Aid counsel and it was not until Mr Wu took over from Mr Boyton, that you accepted advice to enter a plea. Advice, no doubt, given by both counsel. You indicated you were prepared to plead guilty on 12 September 2017, but even so, I allowed matters to be delayed at your request. But I now understand there was no good reason for that delay because no further steps were taken by you to place yourself in a better position.

This is a criminal justice system, Mr Yim. It is not here for your convenience nor to react to your every whim. Every effort was made by this court, and by others, for you to take the opportunity to consider your position and you decided not to take advantage of that consideration extended to you by this court. A considerable amount of public time and expense has been expended upon this matter because of your behaviour and your attitude to the criminal justice system.

The facts, which form the basis of your plea of guilty have been read out to you and you have agreed them. But in essence, you were observed entering and exiting an address in Riviera Garden in Shatin and you were stopped by the police and searched. At that time you had on you 4.888 kilogrammes of “Ice”. On arrest, I understand that you readily accepted that you were transporting that “Ice” for someone else for money. And indeed, you had $23,711 on you at the time you were stopped. I doubt very much if any part of that money belonged to you because the scene inside the flat clearly indicated that you were a warehouseman for the significant amount of drugs found in a suitcase in one of the otherwise empty rooms. There was a further 41 kilogrammes of “Ice” within that suitcase, almost, and on the window ledge.

It is almost unthinkable what harm that “Ice” would have done to the citizens of Hong Kong, both young and old. You may have been a middle man but you were clearly well trusted because you had within your possession and control dangerous drugs to the value of $14 million. And according to you, you were receiving $1,000 for every kilo delivered. So you had within your possession, just on that day, the ability to earn $45,000 at the age of 19. So given the $23,000-odd you had on you at the time of your arrest, I do not accept, as you suggested in interview, that this was your first trip, especially as you have accepted that you rented the flat on 15 November 2015. But I am not here to punish you even more for that fact.

You are now only 21 years of age. You were 19 at the time of this offence and you had not been long out of education yourself, having reached Form 6. But it does not appear that you made very much effort to lead an honest life, does it? Because Mr Wu tells me that although you struggled to get a job, you readily then accepted an offer to run drugs from someone you had met socially and you did so without further thought. That act is to cost you dearly. You and others in your position who are looking for an easy ride in life must realise that drug running is not a career option like working in a restaurant or becoming a shop assistant. It is a crime and the punishment meted out by the courts is a heavy one because we are trying to protect our young from following in your footsteps.

You will not, I know, be the only one to suffer. I know your family will suffer too. You are at least to be given some credit, Mr Yim, for finally admitting that what you did was wrong and for accepting that you have hurt deeply those you love the most. You are extremely lucky to have their support in the future as this sentence is going to be one that will be difficult for all of you, not just you.

This is an exceptional quantity of “Ice”. The total amount over which you had custody and control was 46.161 kilogrammes. In your physical possession alone at the time of arrest, it was 4.888 kilogrammes and that was about to be supplied to others who, no doubt, were then going to supply it further down the chain. There is no guideline for that amount of “Ice”.

The leading cases of HKSAR v Abdallah [2009] 2 HKLRD 437 and HKSAR v Tam Yi-chun [2014] 3 HKLRD 691 state that the appropriate starting points for sentence in very large quantities of “Ice” should be as follows, and I’m reading them out, Mr Yim, because I take no pleasure at all in being here today sentencing you and I want everybody to understand the approach of the courts. For between 600 and 1,200 grammes, the punishment is normally in the range of 20 to 23 years; for 1,200 grammes to 4,000 grammes, it is 23 to 26 years; for 4,000 to 15,000 grammes, it is 26 to 30 years’ imprisonment; and for anything over 15,000 grammes, it is at the sentencer’s discretion. I am sure that is because nobody really envisaged that we would come to a point in time when we are finding suitcases of “Ice” in flats in Hong Kong.

So you had 46.161 grammes(kilogrammes?) in total. The 4.888 grammes(kilogrammes?) under Count 1 would normally attract a starting point of 26 years on its own, and the approximate 41 kilogrammes under Count 2, which at first blush, should attract a sentence of over 30 years. Well, it would clearly be inappropriate and unjust to sentence you to something like 56 years in prison bearing in mind that the maximum sentence for trafficking in dangerous drugs is life. And there is no doubt that the legislature, when they were thinking of that, were looking at those who were at the centre of trafficking. Those people who were making large profits from manufacturing and distributing dangerous drugs by manipulating the weak and vulnerable, and the young in society to ensure that those who were or could be amenable to substance abuse were targeted for no other reason than greed.

Where the amount of dangerous drugs is large, I consider in the circumstances of this case that you should receive an overall sentence of imprisonment which reflects the combined weight of the drugs as if this was one count for - just as Mr Wu said - these charges in any event arise out of the same incident. But what is the appropriate overall sentence? The Court of Appeal in HKSAR v Thattephin Tanyamon [2008] 5 HKLRD 155 suggested that the increase in sentence for trafficking in larger amounts of dangerous drugs should not be mathematically proportional to the increase in quantity. And you can see, from what I have already read out, that the upward increase in imprisonment which I have explained to you from the guidelines shows that as the quantity becomes larger the staged increase becomes less.

So in this situation, though, the court faces a dilemma. The prevalence and consumption of “Ice” in Hong Kong is greater today than even it was when those sentencing guidelines came out three years ago. Larger and larger quantities of “Ice” appear to be available. I do not have the precise figures before me and I can only use my experience in dealing with trafficking in dangerous drugs in this court, and it is not for me to lay down further guidelines to what is already a punitive regime. But to increase the guideline by a nominal amount only may suggest to those who traffic in this substance that the risk is no greater when the quantities are larger.

The English have a saying which is, “In for a penny, in for a pound”. So there has to be a sufficient distinction. There has to be a sufficient distinction in the sentence based upon the quantity recovered even if that distinction is not arrived at on a purely mathematical basis. And that is because this court must do all it can to dissuade people like you, other parents who have children just like you, and I have one, from being involved in such awful crimes.

I would therefore achieve a starting point on Count 1 of 26 years because that is indicated in HKSAR v Tam Yi-chun. And in my discretion, a starting point on Count 2 of 32 years because the quantity you had under your control was significantly more than double the top end of the guidelines, which was in respect of 15,000 grammes for which the sentence would have been in range of 30 years. I arrive at that starting point for a number of reasons, including your previous good character and all that has been said on your behalf, but also because you were young at the time of this offending and I am sure you had no idea of the risks to yourself, even though you somewhat callously disregarded the risk to others of what you were doing.

You are of previous good character and you are young but there is no other positive personal mitigation, as Mr Wu accepted, which can be adduced before me despite every effort of mine to encourage it, and therefore the sentence cannot be discounted further on account of that. You may want to think about that in the near future, Mr Yim. This court understands the fact that a substantial sentence will inevitably take away from you the formative part of your adult working life. You will be entering the work force later than your contemporaries, but you will at least still hopefully be able to meet someone and have a family of your own in future. Although, you will also not be in a position to support the family you already have in your parents and grandparents, whom I know you care about very much.

These factors may be more relevant where a defendant is, at the time of the offence, a young person who has little real understanding of the risk he takes to himself and his own liberty even if he ignores the harm he is doing to others by joining in this enterprise. Where the offence is as serious as this, I cannot reduce further the sentence I am about to pass.

I am going to sound a note of warning, not just for you, but for others. The usual discount for a plea of guilty is one-third. That discount is said to reflect the defendant’s remorsefulness and also the degree to which, by pleading guilty at the earliest opportunity, the defendant has saved court time and public funds. The recent authority of HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, has provided new guidelines for the awards of any discount for plea at the first opportunity and thereafter. It is not applicable to this case as it came into effect on 2 September 2016. This case, however, and a number of others, are yet to be heard which fall outside of that guideline.

Given the fact that you made what I imagine you would say were full and frank admissions at the time of arrest, caution and interview, but had not sought a Newton hearing or a voir dire before trial, there is no sound basis for why this plea and sentence hearing has taken 18 months to get to plea after four hearings. It would therefore not be in the public interest to commend you for that attitude and, in less onerous circumstances, I wish to make it clear that this court would not normally give you a full one-third discount. You do not deserve it. However, you are facing an extremely long sentence and it would be unjust in all the circumstances of this case, and this case alone, to punish you further by reducing the discount which you are about to receive from the sentence. So exceptionally therefore, and in considering the totality of the sentence which you must face, I will not reduce the discount to be awarded for the plea of guilty today. But I want you to go to prison and let everybody know that that is what I would do in every other occasion.

On Count 1, you will go to prison for 17 years and 4 months. On Count 2, you will go to prison for a period of 21 years and 4 months to run wholly concurrently with the sentence imposed upon you on Count 1. You will therefore serve a total prison sentence of 21 years and 4 months.