HKSAR v. Yip Sing Sian and Another

HCCC 296/2019

[2020] HKCFI 645

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 296 OF 2019

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

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COURT: The 1st defendant and the 2nd defendant each have pleaded guilty to one count of trafficking in a dangerous drug, contrary to section 4 of the Dangerous Drugs Ordinance at the Magistrate Court. In addition, the 1st defendant also has pleaded guilty to one count of possession of dangerous drug, contrary to section 8 of the Dangerous Drugs Ordinance.

On 27 September 2018, both defendants arrived in Hong Kong from Malaysia. Upon examination, a customs officer found on the 1st defendant two packets of heroin with a total weight of 455 grammes under his waist. In addition, 1.09 grammes of ‘Ice’, 3.61 grammes of ketamine, 0.08 grammes of MDMA and 8 milligrammes of methamphetamine were also found from the 1st defendant’s luggage.

(Discussion re quantities)

At the same time, a body search conducted by customs officer on the 2nd defendant found two packets with a total weight of 464 grammes of heroin underneath her bra.

During a video-recorded interview, the 1st defendant admitted that the drugs found from his luggage were for his own consumption whereas the two packets of heroin were for delivery to Hong Kong. The 1st defendant also admitted that as he was short of money, he agreed to bring all the drugs into Hong Kong, that not only the two packets found on him but also the two packets found on the 2nd defendant that is his sister.

The 2nd defendant likewise admitted in a video-recorded interview that she agreed with other, ie the boss, to carry the two packets of heroin from Malaysia to Hong Kong. The boss, of course today we know, is her brother.

The 1st defendant is a Malaysian national aged 31. He was unemployed prior to his arrest. It was submitted in mitigation that the 1st defendant committed the present offence because as a result of his mother’s illness, he had to borrow a large amount of money from loan sharks. The money of course was to pay for the mother’s necessary medical expenses. Because of the pressure placed on him by the loan sharks, the 1st defendant foolishly agreed to carry out the delivery.

A number of mitigation letters prepared by family, relatives and church have been submitted. Essentially, they all plead for leniency from this court. I understand their requests but I am unable to accede to. It has been pointed out on numerous occasions that personal circumstances pale into insignificance in cases such as serious as the present one.

Guidelines on sentencing as laid down by the Court of Appeal are clear. Starting point for trafficking in 919 grammes of heroin is around 21 years and 6 months’ imprisonment. In this case, an additional 1½ years will be imposed for the international element. The 1st defendant, of course, will be given the full one-third discount for his earliest plea. For Count 1 he is therefore sentenced to 15 years and 4 months’ imprisonment.

All right. Count 2 relates to those dangerous drugs that D1 claimed to be consumed by himself. The amounts of drugs involved were small and the risk of them being turned into trafficking was negligible. As such, a starting point of 9 months will be imposed. The sentence is reduced to one of 6 months for his plea. Had these drugs been for trafficking, they would not affect the overall sentence materially. As such, it is ordered that these 6 months are to serve concurrently with the 15 years and 4 months imposed on Count 1. In conclusion, for the two offences that the 1st defendant stands convicted, he is sentenced to 15 years and 4 months’ imprisonment.

The 2nd defendant is 24 and has a son of four. She is also a Malaysian national. Prior to her arrest, she worked as a beautician in one beauty salon in Malaysia. The 2nd defendant agreed to assist the 1st defendant, her brother, to deliver the drugs in question as the 1st defendant was heavily in debt. In short, she committed the present offence out of loyalty to her brother. Similarly, a number of mitigating letters have been submitted to ask for leniency. For reasons stated above, I am unable to accede to.

I guess both defendants know full well the consequence of trafficking in dangerous drug. Had they been caught in their home country with the amounts of drugs involved, I am sure the sentence imposed would be, in all likelihood, the most extreme form.

Guidelines for trafficking in 464 grammes of heroin is one of 16 years’ imprisonment. An additional 9 months will be imposed for the international element. Apart from the 2nd defendant’s own plea, there are no other mitigating circumstances which can possibly lower the sentence further. The 2nd defendant is therefore sentenced to 11 years and 2 months’ imprisonment.