HKSAR v. Yeung Kwok Wai

HCCC 9/2018

[2018] HKCFI 1427

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 9 OF 2018

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

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COURT:

The defendant, Yeung Kwok-wai, was charged with one count of trafficking in dangerous drug contrary to the Dangerous Drugs Ordinance, Cap 134, section 4(1)(a) and (3), and also one count of possession of dangerous drug contrary to section 8(1)(a) and (2) of the same ordinance.

The defendant pleaded guilty before a magistrate and was committed to the Court of First Instance of the High Court for sentence. The facts disclose that the defendant was spotted by the police to be wandering at the staircase of a building in Reclamation Street, Yau Ma Tei, and he was intercepted for a search. In one of his pockets in his jacket, the police found a red plastic bag containing an electronic scale, a spoon, a rod and a tray. In another pocket of the jacket, the police found three packets; one contained 10.8 grammes of a crystalline solid containing 10.6 grammes of methamphetamine hydrochloride; that is, ‘Ice’. The second bag contained 1.96 grammes of ‘Ice’ in 2.05 grammes of crystalline solid. The third bag contained six packets containing a total of 0.88 gramme of a mixture containing 0.7 gramme of heroin hydrochloride.

Under caution, the defendant said he bought the dangerous drug from an unknown male in Sham Shui Po earlier. He bought two bags of ‘Ice’ for $3,000 and $500 respectively. He told the police that earlier that same day, after learning that his friend, someone called Ah Ming, wanted to buy half an ounce of ‘Ice’, he offered to sell that amount of ‘Ice’ to Ah Ming at the price of $3,500.

The sale transaction was arranged to take place at the staircase in which he was later arrested. He said he would use the equipment found on him to weigh the dangerous drug to ensure the weight was correct and also make sure there were no contaminants in the dangerous drug. He planned to sell the larger bag of ‘Ice’ he bought at 3,000 to Ah Ming at $3,500 to earn $500, or to make a profit of $500. The rest of the dangerous drug was for his own consumption. He did not know why Ah Ming had not shown up as arranged.

So the defendant was arrested for trafficking in a dangerous drug. Under caution, the defendant said he just wanted to sell the larger bag to Ah Ming to earn $500 to cover his own living expenses. The smaller bag of ‘Ice’ and the six pellets of white powder were for his own consumption.

The retail value of all the dangerous drug was about $4,633.

The background of the defendant

The defendant is 53 years of age. He was married, but separated from his wife a long time ago and had been cohabiting with another lady for over 10 years. The defendant had a long history of criminal record, having appeared in court on 31 occasions. Of the 34 convictions, 17 of them are drug-related; two were for possession of dangerous drug for the purpose of trafficking, and both were in 1988, and the rest were for simple possession. Apart from the drug-related offences, the other convictions include shop thefts, assaults and burglaries.

Mr Cheng, mitigating on behalf of the defendant, informed this court that after the defendant was released from jail in 2016, he worked as a part-time cook for about 20 days before he was arrested for the present offences. As the defendant was convicted of another possession of dangerous drug offence in April this year, the defendant offered an explanation which Mr Cheng told this court, and it was the case that the defendant had forgotten that he had placed a bank note with a small amount of dangerous drug inside his shoes a long time ago, but that was discovered by the staff of the CSD upon his entry to Lai Chi Kok. The defendant stressed that the possession of the banknote with dangerous drugs in his shoe had nothing to do with the offences in the present case.

Mr Cheng submitted that the defendant is clearly a drug addict, and he asked this court to be as lenient as possible when considering the totality principle in relation to the 2nd count of possession.

Now, the Court of Appeal has set down guidelines for the trafficking of ‘Ice’ in the case of HKSAR v Tam Yi Chun. The quantity of ‘Ice’ involved in this case is 10.6 grammes which falls within the band of 10 to 70 grammes, with a starting point of between 7 to 11 years.

Now, on the facts submitted by the defendant, he was going to sell the ‘Ice’ to someone to make a profit of $500. Having considered all the circumstances of the offence of trafficking, I am of the view that a starting point of 8 years would have been appropriate. Although the defendant had a rather bad record and had previous drug-related offences, seeing that the only trafficking offences occurred 30 years ago, in 1988, I will not enhance the starting point of 8 years. The defendant pleaded guilty at the earliest opportunity and I will give him the full one-third discount.

So with this discount, the sentence for trafficking in a dangerous drug is 5 years and 4 months’ imprisonment.

Now for the possession offence. The defendant had no less than 15 previous convictions of possession of dangerous drug, and there are two kinds of drugs involved here; ‘Ice’ and heroin. I am of the view that a starting point of 24 months, that’s 2 years, is appropriate here. With the rather bad record of 15 previous convictions, I will enhance this starting point by 3 months, so making it 27 months. I will give the defendant a full one-third discount, so with this discount, the sentence for the possession of dangerous drug is 18 months.

I now have to consider the totality principle. As I have indicated to Mr Cheng, the defendant had in his possession ‘Ice’ as well as heroin, and not just ‘Ice’. So I am of the view that a small part of the sentence for possession of dangerous drugs needs to run consecutively to the trafficking in dangerous drug count to reflect the seriousness of the offence. I consider a period of 3 months appropriate.

So the actual sentence: Count 1, trafficking in a dangerous drug, 5 years and 4 months’ imprisonment.

Count 2, possession of dangerous drug, 18 months’ imprisonment, 3 months of which to run consecutively to the 5 years and 4 months imposed for Count 1, so making a total of 5 years and 7 months’ imprisonment.