HKSAR v. Yuen Ho Yin

HCCC 47/2019

[2019] HKCFI 2184

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 47 OF 2019

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

On 2 January 2018, Yuen Ho-yin, the accused, was arrested for a dangerous-drugs offence.

On 18 February 2019, he was committed for sentence following a plea of guilty before a magistrate. The charge on which he pleaded guilty is that on 2 January 2018 at Tsiu Keng in Fan Kam Road in Fanling in the New Territories, the accused unlawfully trafficked in a dangerous drug being 25.8 grammes of a crystalline solid containing 25.6 grammes of methamphetamine hydrochloride.

In the course of the committal proceedings, the accused admitted a Summary of Facts which is to be found at pages 37 to 40 of the record. The essence of the Summary of Facts is that a gentleman by the name of Mr Lui was a driver of a light goods vehicle. Mr Lui worked for the company known as GoGoVan. The arrangement with that company was that Mr Lui would receive delivery orders from that company and customer details including the name of the customer and pickup address. He would attend at that address and pick up the goods, the subject of the order.

In the course of his business on 2 January 2018, Mr Lui received a delivery order from a customer by the name of “Debby”. The order requested a pickup from Tsiu Keng in Fanling and that was to be taken to Ning Po Street in Jordan. A telephone number was supplied with the delivery order and Mr Lui called that number and a female answered the call. The female told Mr Lui to wait near a restaurant in Fan Kam Road. He arrived at this restaurant, he received a further call from the female and he asked Mr Lui to go to another place. The explanation proffered to him was that because the vehicle was damaged. Mr Lui went to the place requested and found a vehicle TW7682 which had a damaged windscreen and damaged side windows. He parked next to that vehicle, got out of his vehicle.

When Mr Lui got out of his vehicle, he saw some persons, a male and three females. In due course, he identified that one of the females was the person who had requested the delivery service. After a brief exchange of conversation between the three females and the male, the accused appeared. Mr Lui identified the accused as the GoGoVan driver.

Mr Lui got in his vehicle and then came around to the front passenger side and passed through the window a black paper bag and placed it on the front passenger seat of Mr Lui’s vehicle. Mr Lui asked what that was and he was told it was a telephone. The accused gave the contact number of the recipient. He was told to use the WhatsApp function to call for further instructions. Mr Lui did as he was instructed, called the number, and was told that another person would call him to tell him the exact delivery address.

Mr Lui drove his vehicle but after a short distance, he became concerned about the nature of the item that he had been given by the accused. Accordingly, he stopped his vehicle, opened the paper bag and inside were a mobile phone packaging box. But on opening the box, he found two transparent resealable plastic bags with some white substance therein. This was, in due course, seized and is the drugs, the subject of the charge. Mr Lui called his company and was told to make a report to the police. In due course, the bag and its contents were seized by the police.

The police then went to the place where the damaged vehicle was located, in Tsiu Keng in Fanling. At this location, they found both the female who had made the initial contact with Mr Lui and the accused. There were inquiries which resulted in the accused asserting that this female had called for a delivery van and that she, as opposed to the accused, had placed the black paper bag into the possession of the driver. The accused asserted he did not know what was inside the paper bag.

Notwithstanding his assertions, the accused was arrested and under caution, he told the police that the bag belonged to his girlfriend who was the woman who had made the original call. He continued to assert that it was all done by his girlfriend. He had no part in the process.

He participated in a series of video-recorded interviews. The first of these video-recorded interviews largely reflected what he had already told the police. In the second recording, he said he had been in a relationship with his girlfriend for four months. He said that he was employed as a driver and that on the night of the arrest, he had heard his own vehicle had been damaged and glass was broken. At that stage, he saw the goods vehicle and the driver, but police then showed photographs of the seized plastic bags containing the dangerous drugs, the subject of the case. The accused was asked whether he had occasion to have contact with the substance and the accused asserted he had “some understanding”, his words, as to what they were.

In the third video-recorded interview, the accused exercised his right to remain silent. However, in the fourth interview, he admitted some contact with the package which had previously been seized by the police. The critical elements of the fourth video-recorded interview are as follows:

(1) On the day before the arrest, a male known as “Sai Ho” met with the accused for drinks and a joyride. Sai Ho left behind a tissue packet on his vehicle and did not realize it at the time. On the next day, which was the date of arrest, Sai Ho asked him to return the packet to him. He did not receive any reward. He went to retrieve the package, which was a tissue paper wrapping two packets.

(2) He realized the situation was serious, so he did not return the packet by himself. Sai Ho told him that it was something very important and told him to return it quickly, or if not, he would be in a lot of trouble.

Sai Ho asked him to call GoGoVan to deliver the packet to him. He asked Sai Ho to pay for the GoGoVan delivery fee and Sai Ho told him to tell the delivery driver to go to Ning Po Street.

(3) He brought the packet to his home. He also instructed his girlfriend to call the GoGoVan for delivery service. Then, he put two packets into the mobile phone box. He further put the box in a paper bag, passed the bag to the delivery driver when the driver arrived, told the driver that it contained electronic parts. He had thrown away the tissue paper that wrapped the two packets.

(4) At about the time of the night of the arrest, his vehicle had been damaged. He suspected that Sai Ho was in urgent need to get the packets that he had left in the vehicle of the accused. So Sai Ho had damaged the vehicle of the accused, trying to get the package back. Sai Ho had asked many times why it took so long to return to him.

(5) The girlfriend did not participate in the matter. She did not know what had happened before.

(6) He gave Sai Ho’s number. Sai Ho resided in Tin Yiu Estate in Tin Shui Wai. He did not know Sai Ho’s full name.

It is also agreed the estimated value of the seized dangerous drugs is of the order of $14,000.

By his plea of guilty to the subject charge of the committal proceedings and by his admission of the facts in the statement of facts, the accused admits that he was in possession of the dangerous drugs and that he trafficked in them on the date averred in the charge.

Background and antecedents of the accused

The accused is a 28-year-old man born in Hong Kong and the holder of a Hong Kong identity card. He was educated to Form 5 in Hong Kong. At the date of his arrest, the accused was unemployed but had a history of employment as a driver. He lives with his parents and brother in Sheung Shui.

Pausing there, it is right to note that the family have turned up in court today in support of his family. That is particularly significant because I am told and I accept with sympathy that his father is suffering from serious episode of cancer, a fact which causes the accused great anxiety.

The accused has previous convictions, most of which are unrelated to any activity with respect to dangerous drugs. In 2011, he was convicted of possession of dangerous drugs and ordered to attend Drug Addiction Treatment Centre. The balance of his criminal record is unrelated to drugs, but on any view, is a highly unattractive record. Maybe, just maybe, the events which have occurred in this court may suggest a change in direction.

Sentencing Principle: Trafficking in dangerous drugs

The community of Hong Kong, and as a result, the courts of Hong Kong, have for many, many years taken a severe view of drug trafficking, particularly in relation to ‘Ice’. This particular drug has terrible consequences for the individual. Ridding oneself of an addiction to ‘Ice’ is, to say the least, an arduous process and sadly, history demonstrates that attempts to rid oneself of an addiction to ‘Ice’ is fraught with instances of disappointment.

However, there are also serious consequences for the community. One of those consequences involves the deployment of medical and health facilities to help people who have become addicted to these drugs. Further, the conduct of persons affected by ‘Ice’ in private and perhaps more pertinently in public can be quite dangerous. The view of the community and the courts is reflected in the nature of sentences and the levels of sentence traditionally imposed for drug trafficking.

To reflect the serious view that the courts and the community take in relation to the trafficking in dangerous drugs, the courts have provided sentencing guidelines of various forms of dangerous drugs, including ‘Ice’, which is of course the subject of the charge in this case. The maximum penalty under the law is a fine of $5 million or life imprisonment.

In relation to ‘Ice’, the guidelines were articulated in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. The guideline suggested that for quantities in the present case in which ‘Ice’ falls is the range of 10 grammes to 70 grammes, which normally attracts a sentence in the range of 7 to 11 years’ imprisonment ([2014] 3 HKLRD 691, para 34). The range in question is upon the basis of conviction after trial. That is the basis upon which a starting point is calculated.

Discount

The authorities demonstrate that a person who pleads guilty at the earliest practicable opportunity is ordinarily entitled to a discount from the appropriate starting point of 33 per cent.

Application of facts to sentencing principles

Applying the facts of this case to the accepted guidelines, I think an appropriate starting point would be 8 years.

The accused has pleaded guilty at the earliest practicable opportunity. This mandates a one-third discount. In addition, I am satisfied that there are special circumstances on the papers which would justify a lenient view to be taken of the facts. In addition to this, the accused attempted to assist police with aspects of the present case. I think a fair summary of the police position is that they are singularly unimpressed with the assistance so far. The attempts in relation to the present case have, for all practical purposes, come to nothing but in all of the circumstances, I consider this justifies a very, very marginal enhancement of what otherwise would be the appropriate discount to sentence. All things considered, and particularly taking into account the considerations in this regard articulated in HKSAR v Lo Sze Tung CACC 190/2017 and especially at paragraphs 41 and 48 to 51, I consider a discount of 42 per cent to be appropriate. If there is an error in that discount, it is an error of generosity.

For the foregoing reasons, I am satisfied that the combining of justice with mercy in the present case would justify a sentence of 4 years and 7 months, and that is the order of the court.