HKSAR v. Yau Ying Lung

HCCC 324/2017

[2018] HKCFI 645

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 324 OF 2017

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

Defendant, on 1 September 2017, you pleaded guilty at the Eastern Magistracy before a magistrate to two charges of trafficking in a dangerous drug. You also admitted the facts before the magistrate.

You admitted that in respect of the 1st charge you unlawfully trafficked in 97.18 grams of a solid containing 91.79 grams of cocaine.

In the 2nd charge you admitted to unlawfully trafficking in 213.99 grams of a solid containing 201.74 grams of cocaine, 1.43 litres of a liquid containing 517 grams of methamphetamine hydrochloride and 22.71 grams of a crystalline solid containing 22.03 grams of methamphetamine hydrochloride, commonly known as ice.

Both these offences were committed on 5 August 2016.

In respect of the 1st charge, that was committed at Metro Harbour View in Tai Kok Tsui, and in respect of the 2nd charge, at a flat on the 1st Floor of No. 25 Man On Street, Mongkok. As a result of your plea of guilty you have been committed here to the Court of First Instance for sentence.

Today, the summary of facts to which you admitted before the magistrate has been amended to reflect the proper quantity of drugs to which you trafficked in Charge 1. These facts have been admitted by you today.

On 5 August 2016, acting on information, the police mounted an observation in the vicinity of Man On Street, Mongkok. The target vehicle was a vehicle registered in your name. At about 8.34 pm, they saw you walking furtively from a building at No. 25 Man On Street towards the direction of Metro Harbour View. Approximately a minute thereafter they saw you walk and unlock your vehicle inside the car park of Metro Harbour View. You were intercepted for inquiry.

Upon a body search seven plastic bags of cocaine, which were later confirmed to be the amount of drugs in Charge 1, were found in your possession. $50,000 cash, a mobile phone, two keys and a car key were also found from you. At 9 pm on the same day you were escorted back to your residence at 25 Man On Street, Mongkok. The doors to the premises was opened with a key found from you.

Inside the premises the drugs in the 2nd charge were found. Also found were various types of manufacturing paraphernalia with traces of cocaine or methamphetamine, including four sieves, a metal clamp, six spoons, two electronic scales, a pair of forceps, a pair of scissors, three baking moulds, soda powder, empty resealable plastic bags and a vacuum-packer machine-cum sealer.

Whilst in the premises, under caution, you disclosed the password to a safe. The safe was unlocked with the password and inside that safe 81 plastic bags of cocaine were found and two bags of ice were found. Just to clarify, inside the premises two glass bottles of liquid drugs were found.

When you were arrested for trafficking in a dangerous drug, under caution you stated you were short of money and had trafficked the coke to earn money. When the drugs were found in your premises, under caution you again said that the coke and ice were for trafficking. You were then subsequently video interviewed and under caution you stated, inter alia, that you had trafficked the drugs for a male called Sub Jai for about a month. You had used the private vehicle to deliver drugs to customers and you were on your way to make a delivery when you were intercepted.

Both Sub Jai and you had keys to the premises. You claimed you only helped Sub Jai in trafficking in drugs and had never manufactured them. You gave the police his full name, them. You claimed that Sub Jai was the one who manufactured the drugs. You had resided at the premises as you had no place to stay. You knew the password to the safe as you took the drugs prepared by Sub Jai from the safe and would put the drug proceeds in the safe for Sub Jai to retrieve. You provided the phone number and address of Sub Jai. You said you would have received a monetary reward of $30,000 to $40,000 but Sub Jai kept most of the reward due to various reasons, such as rent him of your private vehicle, etc.

As in August 2016, the estimated street value of the cocaine seized from you was $116,421. For the cocaine and ice seized from the premises its estimated street value was about $264,218. That would make a total value of the drugs seized to be $380,639.

Defendant, you are 46 years of age. You have six previous convictions. All of those are related to dangerous drugs. Four of those are possession of dangerous drugs and two are similar of trafficking in dangerous drugs. Your last two offences were for trafficking in dangerous drugs which in 2009 you were sentenced to 16 months’ imprisonment and in 2012 you were sentenced to 5 years and 6 months’ imprisonment.

Mr Caesar Lo, your counsel, has informed me that you have been dependent on drugs for a long time. This is clearly reflected in your criminal record. After your arrest and remand in Lai Chi Kok, Mr Lo has submitted to me a urine test result showing that you were positive in amphetamine and cocaine. In short, the reason why you committed this present offence was mainly due to financial reasons; that is, that you were supporting your girlfriend and her two children and also struggling to support your drug dependency.

Mr Lo tells me that since your discharge from prison on the last occasion you have found it very hard to find a job. Once your employers found out that you had served a term of imprisonment they would not offer you a chance. Even though you tried to be a full-time taxi-driver, no one was willing to offer you a taxi. However, you basically had a part-time job as a relieving taxi-driver. As this was insufficient to support your financial burden you gradually relapsed into taking drugs again and, thereafter, your life spiralled down to meet your bills and foot your drug habit therefore you committed this offence.

I have taken into account the letter that your girlfriend, Madam Yip, has written to me and that you had been trying your best to provide a stable environment to her and her two children. She did not even know about your problems until you were arrested. She asks this court to treat you as leniently as possible.

Mr Lo has asked me to take into account the effort you have made to assist authorities, that is, particularly since you were arrested, in your video recorded interviews and thereafter. As Mr Lo concedes, we do not know if this is fruitful yet. It is clear law that unless there is positive assistance then no credit can be given. I accept though that you were trying your best to assist and it is an extra step in the right direction. Your greatest mitigating factor is, of course, your early plea of guilty.

As I am sure you are well informed, trafficking in dangerous drugs is a serious offence and there are tariff guidelines for these offences. In sentencing for these offences, I look at both charges in totality. The guideline cases for trafficking in cocaine are Lau Tak Ming and Abdallah, and in trafficking in ice is that of Tam Yi Chun and for large amounts also Abdallah. In sentencing you for these offences I shall take the combined approach and a conversion of the drug cocaine to ice. I shall arrive at a total sentence and then sentence you individually for each offence and then give you the correct total sentence thereafter.

In Charge 1, Defendant, you were trafficking in 91.78 grams of cocaine. In Charge 2, you were trafficking in 201.74 grams of cocaine. That makes a total for Charge 1 and 2 of 293.53 grams of cocaine. In Charge 2, you were trafficking in 517 and 22.03 grams of ice which makes a total of 539.03 grams of ice. Had you been convicted after trial on the quantity of ice of 539 grams, the appropriate starting point would be 18 years and 9 months’ imprisonment.

For 293 grams of cocaine, had you been convicted after trial that would attract a sentence of 13 years and 3 months’ imprisonment. In converting that amount of cocaine to ice that would be approximately 200 grams of ice. Therefore, in adding that 200 grams to 539 grams of ice would total 739 grams in total for Charges 1 and 2. Had you been convicted after trial that would attract a sentence of 20 years and 6 months’ imprisonment.

Defendant, you have two previous convictions for trafficking and this will be your third conviction and in a very short time after your last conviction. I consider this an aggravating factor calling for enhancement of your sentence and in the circumstances I enhance the sentence by 6 months’ imprisonment. That means the starting point had you been convicted after trial would be one of 21 years’ imprisonment. Giving you full credit for your plea of guilty, that term shall be reduced to 14 years’ imprisonment to which you shall be so sentenced.

Let me now sentence you individually for each offence. For Charge 1 of trafficking in 91.79 grams of cocaine, had you been convicted after trial the appropriate starting point would be 9 years’ imprisonment. Giving you full credit for your plea that term is reduced to 6 years’ imprisonment.

In Charge 2, there is 539.02 grams of ice and 201.74 grams of cocaine. If I convert that amount of cocaine to ice that would equate to approximately 128 grams of ice. Therefore, in adding the two amounts together, 539.03 grams of ice plus 128 grams of ice would make a total of 667.03 grams of ice.

In sentencing you for trafficking in 667.03 grams of ice, had you been convicted after trial the appropriate starting point would be one of 20 years and 3 months’ imprisonment. I would enhance this term by 6 months’ imprisonment in view of your previous similar trafficking convictions. That would mean a starting point for Charge 2 of 20 years and 9 months’ imprisonment. Giving you full credit for your plea of guilty on Charge 2 that term would be reduced to 13 years and 10 months’ imprisonment.

In arriving at the total sentence to which I sentence you, that is 14 years’ imprisonment, and to reflect that term, I order 2 months of Charge 1 to run consecutive to Charge 2, which makes a total term of 14 years’ imprisonment.