HKSAR v. Yip Pik Kwai

HCCC 151/2017

[2018] HKCFI 2530

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 151 OF 2017

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

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COURT:

The defendant had pleaded guilty in the Magistrates Court to two counts of trafficking in a dangerous drug; the 1st count, namely 344.06 grammes of a mixture containing 275 grammes of heroin hydrochloride and 0.05 grammes of a mixture containing heroin. On the 2nd charge, on the same day and at the same place, she has pleaded guilty to trafficking, namely 5,061.19 grammes of a crystalline solid containing 4,849.2 grammes of methamphetamine hydrochloride and 352 grammes of a mixture containing 278 grammes of heroin hydrochloride.

To these charges, she has also admitted the facts and a brief summary of the facts that were admitted was that on the date on 28 April 2016, police officers from the narcotics bureau had gone to the hotel called the Heritage Lodge in Castle Peak Road and upon gaining entry into Room B216, the defendant was seen inside the room, together with another male. That inside the room on the floor was a cracked block of heroin which is the subject matter of the 1st charge. Together with the heroin were found a hammer, an electronic scale and three empty plastic bags.

Now, the subject matter of the 2nd charge was found inside the room on top of the refrigerator and the drugs were found contained in a recycle bag and also found on the refrigerator were empty plastic bags of different sizes. When the defendant was cautioned, she said that she had already been caught red-handed, and in the defendant’s handbag were found two pairs of plastic gloves, three notebooks and five mobile phones and cash, $81,917.40. No drug inhaling tool or device were found in the room.

The defendant at the time was wearing a pair of gloves and that pair of gloves was taken from her and was found to contain traces of about 0.03 gramme of a mixture containing heroin.

The total estimated retail value of the ‘Ice’ were in the region of $1,533,541, and for the heroin hydrochloride, was in the region of $521,304.

The room was rented on that day by the defendant. The defendant, in a subsequent interview, had said that she had been asked to rent a room at the hotel to package dangerous drugs and she would be rewarded with $5,000.

At about 1 pm on the day of her arrest, she was asked by this person called Man Gor to collect the drug near the hotel by the roadside. She said that she collected the drug and that she was told to find somebody to test the quality of the drug, and she found the other defendant in the case to come and try the quality. She said that she had been told to package the “白粉” and ‘Ice’ so that each packet weighs 28 grammes of “白粉” and 125 grammes of ‘Ice’. In the course of the packaging, she had used the hammer, the electronic scale and the empty plastic bag which was found inside the room. She claimed that the notebooks were for recording matters, which she has forgotten what they were, and that the money in her handbag had been given to her by her daughter.

Now, the defendant, as I have said, had pleaded guilty in the Magistrates Court. However, in relation to the 1st charge, she was charged together with another male, Chiu Ka‑tung, who was found inside the room with her. So her sentencing had been delayed pending the outcome of the trial of that accused. As Mr Boyton had correctly pointed out, the trial of that accused had been delayed due to no fault of the defendant and finally the trial proceeded just last week and that accused had been found not guilty by the jury. So this court then proceeded to hear mitigation in relation to the sentencing of this defendant.

The defendant has a criminal record. She has not kept out of trouble over the years and has been in and out of the court. Basically, as far as her criminal record is concerned, she has been involved in various criminal matters such as theft, robbery, etc, but of relevance to the present proceedings would be her previous conviction in drugs. She was convicted of possession of drugs and possession of equipment fit for inhaling drugs in 1992; she was first convicted of trafficking in a dangerous drug in the High Court in 1998, and she also was again convicted of trafficking in dangerous drugs in 2004, also in the High Court. So the defendant is no stranger to the court.

Now, in mitigation, Mr Boyton had submitted that the defendant in fact has three children, the youngest being 15 and the eldest being aged 30. Letters were submitted by the eldest and the youngest, pleading for clemency. There was also a letter submitted by the Hong Kong Christian Kun Sun Association Limited, testifying to the fact that the defendant had appeared to have a desire to turn a new leaf and is feeling remorseful and hopes to lead a more meaningful life after this. Now, that is very much, I think, good news for her children, and hopefully they will see a new mother.

In mitigation, as Mr Boyton pointed out, the defendant is entitled to one-third off because she did plead guilty at the earliest opportunity. She did have two previous of trafficking, as has been already noted, and Mr Boyton submits that in light of all the circumstances, that I should not see fit to enhance the starting point because of that. The other mitigating factor which I do take into considerable account is what has been revealed to me earlier on in chambers yesterday, and Mr Boyton did refer me to the case of Z v HKSAR [2007] 1 HKLRD 977, a Court of Final Appeal decision, on discount to be given for pre-arrest assistance.

The fact in that case is not relevant, but what is indeed relevant is the headnote, paragraph 3, that where the Court of Final Appeal noted that there was no justification for drawing a curtain between pre-arrest and post-arrest assistance, and imposing a bar against recognition of the former. However, the court should examine the circumstances relating to the pre-arrest assistance before deciding whether, and if so, the extent to which it should be taken into account.

Some of the matters that the Court of Final Appeal said the sentencing judge should take into consideration is, first, whether the defendant might have assisted the authorities out of good motive; secondly, whether the defendant might have received payment or other consideration for his assistance; thirdly, the courts should always be wary of a defendant who was engaging or was intending to engage in criminal activities and who gave assistance in order to build up credit for himself or herself to be used later if apprehended.

So although there was no bar to recognition of such assistance, the court should proceed with considerable circumspection. It was undesirable to take an approach which had the effect of fostering potential defendants trying to build up goodwill in this way. In paragraph 4 of the headnote, the Court of Final Appeal adopted what the Court of Appeal did and said that they were well-placed to consider the range of reductions of sentence for cooperation with the authority. So it would appear that the discount would be in the region of 40 to 50 per cent, depending on the circumstances, and taking into account everything pertaining to this, the sentencing judge would have to decide an appropriate discount.

Now, as I have said, I do appreciate what I have heard and certainly it does call for discount, and in my view, it would merit a 40 per cent discount which would include the one-third discount. As far as the 1st charge is concerned, the sentencing guidelines, as has been noted by Mr Boyton, is the case of Lau Tak Ming [1990] 2 HKLR 370, and in that case, it is recommended that for trafficking in heroin of 200 to 400 grammes would merit a sentence of 12 to 15 years. In this case, the heroin was in the region of about 275 grammes, give or take a couple of grammes for the other traces, so I will put it at 275 grammes. I would consider a starting point of 13 years would be appropriate, and giving a discount of 40 per cent would give us in the region of about 7 years 11 months.

Now, in the 2nd charge, the total drug is 4,849.2 grammes of methamphetamine hydrochloride and 278 grammes of heroin, which if added together, would give us a total drug quantity of 5,127.2 grammes. As also again been pointed out by Mr Boyton, the sentencing guidelines for methamphetamine is in Tam Yi Chun [2014] 3 HKLRD 691 in 2014. However, it is noted that for quantities over 600 grammes, the court should follow the guidelines laid down in Abdallah [2009] 2 HKLRD 437, and in Abdallah’s case, it is pointed out that for trafficking in 4,000 to 15,000 grammes would merit a starting point sentence of 26 to 30 years’ imprisonment. So for the amount of drug of 5,127.2 grammes, I would think that in the circumstances, the starting point would be between 26 to 26½ years’ imprisonment.

I do take into account, however, that despite the previous convictions of the defendant, there had been a delay in the sentencing of her offences due to no fault of her own. Basically, it is her co-accused in the case, and so judging from all the circumstances, she did admit to the police officers upon arrest her involvement in these drugs, I will take the 26 years starting point, and giving her the full 40 per cent off, would reduce the sentence to 15 years and 7 months.

Now, then I have to consider the totality principle. All the drugs were found in the room and the fact of the matter is in fact, according to the defendant in her cautioned statement, it was all taken as one lot to the hotel room. So I would consider in those circumstances, therefore, that taking everything into consideration and all the mitigation, etc, that the fair way of dealing with the totality principle is to make each of the sentence in Charges 1 and 2 concurrent.

So the defendant will go to prison for 15 years and 7 months.