HKSAR v. Yip Yuet Ming and Another

HCCC 39/2017

[2018] HKCFI 501

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 39 OF 2017

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

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COURT:

Both of you have pleaded guilty to one count of trafficking in dangerous drugs, in 18.529 kilogrammes of methamphetamine hydrochloride or ‘Ice’ as it is commonly called, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, and you stand convicted upon your own pleas.

The summary of facts dated 2 February 2018, has been read out to you and you have confirmed that those form the basis of your plea. In essence, one week before the arrest, the 1st defendant approached the 2nd defendant and the two of you agreed to import ‘Ice’ from the Mainland to Hong Kong. Later the same week, you both went to the Mainland together where the 1st defendant sourced 19 packets of ‘Ice’ and the 2nd defendant arranged an unknown boatman as courier to sail the drugs to Hong Kong. The 1st defendant promised to give the 2nd defendant and the courier remuneration of $2,000 per packet of ‘Ice’ successfully imported. As there were 19 packets of ‘Ice’, that would have meant that the 2nd defendant and the boatman would have received $38,000 each for this one transaction.

Pursuant to that arrangement, the 1st and the 2nd defendants picked up the drugs from the boatman at Tsing Yi Pier on 19 May 2016, and then the 1st and 2nd defendants left by car. They were intercepted by officers at Lai Chi Kok Road. The 2nd defendant’s attempt to evade arrest failed and the 1st defendant was also subdued by officers before he could drive away from the scene.

The street value of the ‘Ice’ found in your car was $5,715,652, which is a significant amount.

The 1st defendant remained silent upon arrest and caution, as is his right. The 2nd defendant confessed to officers upon arrest and in interview, saying that he trafficked in the ‘Ice’ for the 1st defendant because he had lost money in stocks and was heavily in debt.

Both of you originally pleaded not guilty on 13 February 2017 before the Eastern Magistrates’ Court and the matter was committed to this court and was listed for trial to commence on 29 January 2018. There was no indication on the listing date that either of you intended to plead guilty. The 2nd defendant originally intended to challenge the admissibility of his admissions and a voire dire was to be held. However, on 15 January 2018, the 2nd defendant offered to act as a prosecution witness against the 1st defendant and gave a non-prejudicial statement on 18 January. This was served on the 1st defendant on 22 January, at which point Mr Yu on behalf of the 1st defendant spoke with Mr Kwan for the prosecution and indicated the 1st defendant’s intention to enter a plea. This court was informed of the 1st defendant’s plea by a letter dated 22 January 2018. The trial date was adjourned and both defendants entered their pleas on 2 February.

Mr Yip, you are now 54 years of age and have a wife and two sons. You started your working life helping your parents in the fishmongers’ business that they had but you later moved on to trade in motor vehicles and you earned a monthly salary of about $20,000. You also received some income from the family business and your wife also works. You were not wealthy by any means and it would have cost a lot of money to send your son to school in the United Kingdom. The letters I have received indicate a man with a strong sense of family who is a good friend, but you do not come before this court as a man of good character, although I note that you had not previously committed any drugs-related offences and your last conviction was in 1993 for significantly less serious offences than you face today. I have not taken that previous offending into account. You say you met the 2nd defendant through his estate agency business and that you became good friends. You also knew someone called Ah B through your parents’ business and it was Ah B who was behind the drug importation.

You now accept full responsibility for your offending, albeit very late in the day. You say you committed this offence to help the 2nd defendant out of his financial difficulties and out of stupidity.

You, Mr Fung, are now 58 years of age. As confirmed by Mr Iu, you are also not of good character but you do not have any drug-related matters on your criminal record and your last conviction was in 1999. In mitigation, Mr Iu said to the court that you came to Hong Kong unlawfully in 1979 at the age of 20 and were prosecuted for that. Other than that matter, you have only one other appearance before the courts in 1999 at the age of 40 for unlawful possession of dutiable goods which looks as if they were cigarettes.

In all other respects you have been trouble free. Mr Iu tells me that you were married with two children but that you divorced. You have always worked as a decoration worker and from those earnings you maintained your ex-wife and both children. They are now adults with good jobs, which is to your credit. You now live with your current partner who is retired and self-sufficient. I have read the letters that were submitted to the court and you, like Mr Yip, are clearly well liked. But you managed to get yourself into debt and it was that debt that led you to seeking the help of Mr Yip, who foolishly thought that trafficking in drugs was the answer. You both entered into this enterprise with your eyes wide open and must have been aware of the risk you were taking. I accept that you are now remorseful but it took you until this year, some 18 months after this offending, to decide to enter a plea. Up until that point, you, like Mr Yip, were contesting this trial and you were contesting the admissions you made on arrest and interview, the same admissions that you now accept are the truth.

This is a very large 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: between 20 and 23 years for 600 to 1,200 grammes; between 23 and 26 years for 1,200 to 4,000 grammes; between 26 to 30 years for 4,000 to 15,000 grammes; and over that amount, over 15,000 grammes, at the court’s discretion.

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 that the upward increase in imprisonment which I have read out to you from the guidelines shows that as the quantity becomes larger, the staged increase in tariff is significantly less.

For 18.5 kilogrammes of ‘Ice’, I believe the appropriate starting point as 30 years and 6 months.

But I am going to take into account your positive good character in the intervening years and I am going to deduct 1 year from that starting point cognisant of the fact that both of you are mature men who may spend the remainder of your lives in prison. That lowers the starting point after trial to 29 years and 6 months in respect of you both.

I also view it just to differentiate the roles which the two of you played in this syndicate. While both of you physically trafficked in the drugs, the 1st defendant was the one who approached the 2nd defendant, sourced the drugs, made the arrangements and was to remunerate the 2nd defendant and the courier; whereas the 2nd defendant arranged the boatman and assisted the 1st defendant. It would appear from the evidence therefore that in order of culpability, the 1st defendant was higher up in the organisational and operational chain than the 2nd defendant and the 2nd defendant appears to have simply assisted him in carrying out the physical importation. It is therefore just, in my discretion, to enhance the original starting point for the 1st defendant by 6 months to 30 years to reflect his greater culpability. In doing so, I have taken into account the principle of totality.

There is also the aggravating international element in that you both imported these drugs from mainland China. The quantity you imported was several times greater than the 1 kilogramme referred to in HKSAR v Abdallah Anwar Abbas [2009] 2 HKLRD 437. However, this is already a substantial sentence and therefore I shall, in my discretion, enhance the sentence by 2 years only in respect of you both. That makes the starting point for the 1st defendant, Mr Yip, 32 years, and for the 2nd defendant, Mr Fung, 31 years and 6 months.

Mr Yip, you pleaded guilty only after the trial dates were fixed and when you realised that your co-defendant was going to give evidence against you. The trial was fixed for 29 January 2018 and you indicated a plea on 22 January 2018. As the Court of Appeal stated in HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, the utilitarian value of a guilty plea is greater the earlier it is tendered or intimated. That is why there is a full one-third discount if you enter your plea at the earliest opportunity, which is at committal. Thereafter, if you had entered your plea by the date of listing, which was 22 March 2017, you would still have been given a 25 per cent discount for saving court time and avoiding the expense of a trial. But your plea was entered long after that; it was entered just one week before trial. Taking into consideration all the circumstances of this case and of the whole of the judgment of the Court of Appeal in HKSAR v Ngo Van Nam, you will receive a discount of fractionally over 20 per cent, which makes your sentence, Mr Yip, 25 years and 7 months.

Mr Fung, you also changed your plea at a very late stage and had even intended to challenge the admission and hold a voire dire. As a consequence, this trial was listed to be longer than it would otherwise have been. You only indicated your change of mind in January of this year and therefore you stand in the same shoes on discount as your co-defendant. You offered to provide assistance and give evidence against your co-defendant and there is no doubt that it was your offer of assistance which triggered the plea by D1. How much extra discount do you deserve for that offer of assistance? It was offered very late in the day. If the prosecution had accepted your offer, it would inevitably have resulted in a further adjournment and loss of court time. As it was, the prosecution did not have time to consider their position as your plea triggered that of the 1st defendant and there was no need to hold a trial. As a result of that plea, there was also no need for you to give evidence but I accept that you were willing to do so. The Court of Final Appeal in Z v HKSAR [2007] 1 HKLRD 977 said that a 40 per cent discount may be given to someone who has provided assistance but not testified, and if testifying, then they may expect to receive between 40 and 45 per cent. That would be between 7 and 12 per cent above the usual one-third discount for plea. In this case you are to receive a discount of 20 per cent for plea and therefore I will adjust the discount upwards from that 20 per cent accordingly. You did not testify. I do not know if you would have come up to proof but I accept that you were willing to do so. I therefore think, in the circumstances of this case, that a discount fractionally above 29 per cent (an enhancement of 9 per cent) is appropriate.

Mr Fung, you will go to prison for 22 years and 4 months.