HKSAR v. Yip Wing Kei

DCCC 1119/2017

[2018] HKDC 455

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1119 OF 2017

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Reasons for Sentence

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1.The defendant pleaded guilty to two charges of trafficking in a dangerous drug.

Outline of facts

2.The defendant was intercepted by a patrolling Police officer at around 2:25 pm on 18^th September 2017 at the sitting-out area on Nam Cheong Street in Sham Shui Po.

3.A search was conducted on the defendant and a transparent plastic bag was found on his person.

4.Inside the plastic bag were a total of 22 packets. 9 of those contained a total of 4.46 grammes of a mixture containing 3.17 grammes of heroin hydrochloride (a salt of heroin), while the rest contained a total of 2.29 grammes of a mixture containing 1.63 grammes of heroin hydrochloride.

5.Upon inquiry, the defendant said that the “white powder” did not belong to him and that he was helping someone to sell them.

6.The defendant was arrested for trafficking in dangerous drugs and he said under caution that he was poor and so he helped others to sell “white powder”.

7.The defendant was eventually brought to Lai Chi Kok Reception Centre.

8.At around 11am on 20^th September, the defendant excreted a packet containing 0.5 gramme of a mixture containing heroin hydrochloride.

9.The defendant was arrested for that. Under caution, he said that he was scared when he was arrested for the earlier offence and so he swallowed the heroin. He had informed the authority on 19^th September before he excreted the packet.

10.In a subsequent video recorded interview, the defendant claimed under caution that a male friend of his called ‘Ah Gor’ gave him some dangerous drugs to make some money. Ah Gor told the defendant to sell the drugs and that he will return to collect the sales money later. Ah Gor did not say how much the defendant will earn for his trouble.

11.Ah Gor handed over 10 to 20 packets to the defendant, which he did not count.

12.The defendant had not sold any of the packets before his arrest. The defendant claimed that it was his first time selling drugs for Ah Gor.

13.The total street value of the drugs involved in the two charges is $6,191.50.

Previous convictions

14.These are the defendant’s first convictions for trafficking in dangerous drugs. Although there are 3 drug related convictions, they date back to 2004 and 2007. The defendant’s last conviction was for attempted theft from a vehicle in 2008, when he was sentenced to be detained at the Drug Addiction Treatment Centre.

Mitigation

15.The defendant is 42. He was born in China and came to Hong Kong in 1993. He lives with wife, their 16-year old son and the defendant’s parents in public housing in the Sham Shui Po area.

16.The defendant’s wife works in a wet market in Cheung Sha Wan earning $10,000 per month. The defendant’s parents rely on CSSA allowance of around $7,000.

17.Prior to arrest, the defendant worked as a kitchen worker earning $8,500 per month. The defendant himself was Educated up to F.3 level. Quit school and returned to china to work. There he began his addiction to dangerous drugs. Despite his addiction, he has been able to maintain a good relationship with his family.

18.I am told that the defendant had never committed any domestic violence and that his family is ready and willing to help him get rid of his drug addiction.

19.The defendant’s father and the defendant’s supervising social worker Ms Lam wrote in mitigation. In gist, they speak to how the defendant has always been a good son and father.

20.Mr Lau for the defendant pointed out that the defendant had made frank admissions upon his arrest for charge 1.

21.As to charge 2, the defendant had on his own initiative informed the CSD officers that he had swallowed the dangerous drugs in charge 2 when he was transferred there.

22.The defendant understand that he will face immediate custodial sentence. He asks for leniency so that he can return to his family as soon as possible.

23.Lastly, Mr Lau submits that given the circumstances of the commission of the two offences, their sentence should be made concurrent.

Sentence considerations

24.The maximum sentence for trafficking in dangerous drugs is that of life imprisonment.

25.The guideline tariff sentence for trafficking in heroin are found in the case of R v Lau Tak-ming and Others [1990] 2 HKLR 370. For trafficking of up to 10 grammes of heroin hydrochloride, the sentencing range is 2 to 5 years’ imprisonment. 

26.The particulars in charge 2 do not specify the narcotic contents of the 0.5 gramme mixture. The quantity of heroin in the mixture of charge 2 was too small to be quantified by the Government Chemist. According to paragraph 9 of the summary of facts, the total narcotic contents that the defendant had trafficked in for both charges is 4.80 grammes of heroin hydrochloride.

27.In relation to Charge 1, an arithmetical application of the tariff towards 4.8 grammes of heroin hydrochloride would lead to a starting point of around 42 months’ imprisonment.

28.In relation to charge 2, given the minute quantity of heroin in the mixture, a proper starting point is that of 2 years’ imprisonment, which is the lowest sentence in the sentencing range.

29.I find that there are no aggravating features in the defendant’s commission of the two offences. Although he is not of previously clear record, these are his first trafficking convictions and his last conviction was some 10 years ago.

30.Although I accept that the defendant has been a good father and filial son, I find that there are no mitigating features in the commission of the offences or the defendant’s personal circumstances that would warrant a reduction in sentence other than the one-third discount for his guilty plea.

31.I will therefore sentence the defendant to 42 months’ imprisonment on charge 1 and 24 months’ imprisonment on charge 2, which is discounted to 28 and 16 months’ imprisonment respectively upon the defendant’s guilty plea.

32.I agree with Mr Lau’s submission that the circumstances of the commission of the two offences are such that they should be regarded as arising out of the same transaction. I order that the sentences be served wholly concurrently.

33.The final total sentence for the two charges is, therefore, 28 months’ imprisonment.