HKSAR v. Yeung Wai Hei

DCCC 566/2018

[2018] HKDC 1470

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 566 OF 2018

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to one charge of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, and one charge of possession of dangerous drugs, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance. This is in line with the indications he gave when he was first asked to give an indication at the District Court.

2.This afternoon, on his own pleas and admissions of the facts, he is convicted of both charges.

3.The facts, as revealed from the summary of facts read out in court, are as follows.

4.At about 11.37 pm on 22 March this year, the defendant was on his way to Macau.  After he had gone past the Immigration checkpoint, he was stopped by a Custom officer for a Customs check.  When an Ionscan was performed on his mobile phone and wallet, signs of dangerous drugs were detected, and the defendant was detained for a body search.  In the course of that search, a resealable plastic bag with suspected cocaine in it was found tucked into the defendant’s underwear. 

5.The defendant was arrested and, under caution, he told the officer that the bag had cocaine in it and he had bought it in Sham Shui Po for his own consumption.

6.In a video interview which took place later, the defendant told the officer interviewing him, among other things, that he had been working as a part-time fruit delivery worker for six months, that he was earning about 8 to 9 hundred dollars per day, and he also told the officer that he himself had been taking drugs for one and a half years.

7.Now, after his arrest at the Ferry Terminal and in the small hours of 23 March this year, the defendant was taken back to his resident at Tsz Lok Estate in Tsz Wan Shan for a house search.  In that search, a resealable bag containing two smaller plastic bags, each containing some suspected ketamine, was found and, under caution, the defendant told the officer that it was ketamine inside the bags, that he had bought them in Sham Shui Po at $400, and that they were for his own use.

8.Now, the bag of suspected cocaine found on the defendant at the Hong Kong Macau Ferry Terminal was later sent to the government chemist and was found to weigh 23.7 gramme(grammes) and was confirmed to have 22.7 grammes of cocaine in it.

9.As to the two smaller bags of suspected ketamine found at the defendant’s residence, they were also of course sent to the chemist for examination and they were also confirmed to be 4.75 grammes of a powder containing 1.34 grammes of ketamine.

Mitigations

10.The defendant is 19 years old.  According to Mr Kwan, who appeared for him this afternoon, the defendant’s parents were divorced when he was very, very young and he was as a result brought up mainly by his own grandparents.

11.He left school after finishing Form 1 and for the six months or so prior to the present offences he worked as a delivery worker.

12.I was also told by Mr Kwan this afternoon that, for taking the drugs to Macau, the defendant expected to earn about $5,000, a sum which he was yet to receive, however.

Sentencing consideration

13.Mr Kwan in mitigation accepted that in a case of drug-trafficking clearly the most important mitigation must be the defendant’s timely plea.

14.However, I was also asked by Mr Kwan to consider tempering justice with mercy in light of the defendant’s comparatively young age and his clear record.

15.Now, it has been said time and again by courts of all levels in this territory that drug-trafficking is one of the most wicked offences against which sentences of sufficient deterrent effect should be considered, and no doubt it was with that in mind, and also for the purpose of consistency, that clear tariffs have been set by our Court of Appeal.

16.For trafficking in cocaine, in the region of 10 to 50 grammes, the sentence, according to the case of R v Lau Tak Ming, should be one of 5 to 8 years’ imprisonment.

17.In this case, the cocaine in question was 22.7 grammes.  As such, it would have attracted a starting point, in my view, of 6 years’ imprisonment.

18.For the fact that the defendant was in the course of taking the drugs out of Hong Kong into Macau, I am of the view that an increase of sentence is warranted.  The case of HKSAR v Abdallah Abbas is but one of quite a few authorities in support of that.

19.Before me, Mr Kwan has sought to draw a distinction between importing dangerous drugs into Hong Kong on the one hand and exporting them on the other. 

20.While I can easily see the difference between them, I do not think the difference is such that this court can be allowed to ignore the cross-border element involved, and that is particularly so given that the amount of cocaine being exported is over 20 grammes, which cannot by any standard be said to be a very small amount. 

21.In my view, an extra sentence of 3 months as a starting point is called for. 

22.That gives a starting point of 6 years and 3 months (or 75 months).

23.For his guilty pleas, which were entered at the earliest opportunity, the defendant is of course entitled to the full one-third discount.  That will take the sentence down from 75 months to 50 months’ imprisonment.

24.For his age, as I have said to Mr Kwan, I do not think it is such that for that reason alone a further discount should be given.

25.However, I would take into account also the fact that he has never been in trouble with the law before and the fact that he has come from a good family, and for this I will give the defendant an extra discount of 3 months.

26.That will reduce the sentence from 50 months to 47 months’ imprisonment.

(Discussion re calculation of sentence)

27.I now proceed to deal with the second charge.

28.We are dealing here with possession for your own consumption of a total of 1.34 grammes of ketamine.

29.There is no sentencing tariff for possession of ketamine.

30.Now, bearing in mind that you would have to serve a long sentence for the trafficking and given the relatively small quantity of ketamine involved under the second charge, I am of the view that a sentence of 3 months would have been more than sufficient in the circumstances as a starting point.

31.For your guilty plea, you would likewise be given the full one-third discount, which results in a sentence of 2 months’ imprisonment.

32.I am minded, given the long sentence the defendant is going to serve for the first charge, to order the two terms to be served concurrently.

33.For the reasons which I have given just now, the defendant is therefore sentenced to a term of 3 years and 11 months’ imprisonment for the first charge and a term of 2 months’ imprisonment for the second charge; the two terms to run concurrently.