HKSAR v. Yip Sing Yeung

HCCC 181/2018

[2018] HKCFI 2851

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 181 OF 2018

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

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COURT:

Yip Sing-yeung, I am not going to preach a sermon to you. As you are a drug addict yourself, you are as much a victim of this filthy trade as a perpetrator in it.

On 15 July last year, you pleaded guilty to trafficking in 23.39 grammes of a solid containing 22.62 grammes of cocaine and 6.56 grammes of a solid containing 6.55 grammes of methamphetamine hydrochloride, a stuff that is normally called “Ice”, and you also pleaded guilty to a 2nd count of possession of 2.54 grammes of a solid containing 1.19 grammes of ketamine and also to possessing 1.15 grammes of herbal cannabis.

Both offences must be dealt with separately before I come to consider whether you should serve your sentences on each count consecutively or concurrently. So I am going to take the 1st charge, the trafficking charge, first. As I have said, it was a solid containing 22.62 grammes of cocaine and 6.55 grammes of “Ice”, a total of 29.17 grammes of prohibited dangerous drugs. It is well-established that the tariff range of sentences after trial for trafficking in cocaine and “Ice” are different. So therefore there has to be - and there has been - devised a methodology to reconcile the two. I am following what is known as the ratio methodology.

As you have only one previous conviction in trafficking in dangerous drugs or, more accurately, aiding and abetting the trafficking in dangerous drugs for which you were sentenced in May of 2002, I am not proposing to increase your sentences just because of that. So applying the ratio methodology I have just spoken of, I have arrived for the 1st charge at a starting-point sentence - that is for the trafficking charge - of 6 years and 10 months.

I then have to look at what your sentence should be for the possession offence. Your counsel, Ms Ku, accepts that had that stood alone, that being the only charge you faced, your sentence after trial would have been in the region of 6 to 9 months. And given that you have four previous convictions for possession of dangerous drugs and are an admitted drug addict consuming, so Ms Ku tells me, 1.5 grammes of “Ice” a day and also 1 gramme of cocaine a day, I take a starting-point sentence for your possession offence of 9 months.

Were I to order that the two sentences be served consecutively that would mean that you would be imprisoned, theoretically, for a total of 7 years and 7 months. I accept Ms Ku’s argument that that would be too long a period of imprisonment. It would also be contrary to the accepted practice of these courts.

Ms Ku has pointed out to me that were the ketamine to be added to the cocaine and the “Ice” in the trafficking charge, your sentence following all the established sentencing authorities would still be one of 6 years and 10 months. Ms Ku also argued before me that the small quantity of herbal cannabis may be ignored for these comparison purposes and I agree with her there. Although it is illegal to possess cannabis, or to traffic in it, it is well-established that cannabis is not as harmful a drug of abuse as cocaine, “Ice” or ketamine are. All this indicates to me that your starting-point sentences for the trafficking and the possession charges must run concurrently, at the same time.

I now come to your claim that some of the “Ice” and cocaine in the trafficking charge was for your own consumption. You, as I have said, claim to consume 1.5 grammes of “Ice” and 1 gramme of cocaine a day, and you, I am told by Ms Ku, estimate that around 10 per cent of the total quantity of dangerous drugs in the trafficking charge would have been for your own use and not sold on to others. And there is, I believe good reason to believe your claim. Your criminal record shows that you in the past have been a drug addict, and the fact that you were consuming dangerous drugs on the day of your arrest is shown by the fact that traces of amphetamine were found in your urine when a sample was tested on 18 July of last year when you were first admitted to Lai Chi Kok Reception Centre.

The Court of Appeal has said that where it is apparent that a significant proportion of drugs are for the defendant’s own consumption, the sentencing judge should adjust the sentence to reflect the fact that not all the drugs are intended for trafficking. The Court of Appeal has gone on to say that the customary discount is said to fall in the range of 10 to 20 per cent. And I would certainly comment here that a claim of self-consumption of one-tenth of your stock-in-trade can be fairly said to be a significant proportion.

So, in your case, I am satisfied that I should reduce the starting-point sentence of 6 years and 10 months on the trafficking charge by 10 per cent to reflect your claim that around one-tenth of them were for your own consumption. This leads to a revised starting-point sentence for the trafficking offence of, as near as these reductions can be expressed in terms of years and months, of 6 years and 2 months’ imprisonment.

I then have to give you credit for your early plea of guilty to both charges which you made before the magistrate. And again, as you have been told this, it is well-established sentencing policy in Hong Kong that those who admit their guilt at the earliest possible stage in the justice process can expect to receive a reduction of one-third from the sentence they would have received had they taken the matter to trial and been found guilty.

I make it clear that your guilty plea is the only matter that I find going to mitigation of your sentences. Giving you a one-third discount, as I am going to do, reduces your sentence on the trafficking offence to one of 4 years and 1 month. And your sentence on the possession charge is likewise reduced by one-third to one of 6 months, again to reflect your guilty plea.

As I said and for the reasons that I have already given, you will serve your two sentences concurrently, at the same time, which means that for your two offences, you will be imprisoned for a total period of 4 years and 1 month, and that is the sentence now passed on you.