HKSAR v. Tsang Wai Yip and Another

HCCC 132/2018

[2019] HKCFI 2093

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 132 OF 2018

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT: The 1st defendant, who is now 29 years old, and he faces sentencing on three trafficking offences committed on 3 October 2017 in respect of a total of 873.8 grammes of cocaine which were worth 1,503,000 odd dollars. He was arrested in the street where Charges 1 and 4 were discovered.

When his flat was searched, the cocaine in Charge 5 was found together with the paraphernalia usually associated with drug trafficking. These items included five electronic scales, 114 gloves, two sealer machines, numerous resealable plastic bags and 174 grammes of sodium bicarbonate. There is also in the 6th charge the offence of possession of dangerous drugs where the defendant had small quantities of cannabis and ketamine at home, which, it is accepted, were for his own use.

The 2nd defendant, who is the same age as the 1st, is also charged with four offences all committed on 3 October last year. He was found in the company of the 1st defendant - they are friends. Count 2 relates to his possession of 21.07 grammes of a solid containing 17.8 grammes of cocaine. This had been supplied to him by the 1st defendant and is therefore the same quantity of cocaine which is referred to in the 4th charge against the 1st defendant. The remaining three charges against the 2nd defendant all relate to forged identity cards.

Dealing first with the 1st defendant. He was seen coming out of a building in Ho Lik Pui Village in Pat Heung. He was accompanied by the 2nd defendant and was carrying a plastic bag. When the two men parted company, each was intercepted by customs officers. In the 1st defendant’s bag were 42 separate plastic bags. The total cocaine content in those bags was 713 grammes in a solid weighing exactly 1 kilogramme. The keys which the 1st defendant was carrying opened the flat door to the premises he had just left. The defendant explained that the other man with him was his friend and that he had just supplied the cocaine found in the 2nd defendant’s possession and it is said free of charge but I find that extremely difficult to accept.

Inside the flat, aside from other paraphernalia, police found nine separate plastic bags which had a total of 200 grammes of a solid containing 143 grammes of cocaine. That is the subject of Charge 5.

The 1st defendant, as Mr Oliver has just said in mitigation, was wholly cooperative throughout, admitting his involvement from the start and pleading guilty in the Magistrates’ Court.

For the total amount of cocaine in the 1st defendant’s case - and he has been advised as to the guidelines as to these drugs - a sentence after trial following what is said in HKSAR v Abdallah reported at [2009] 2 HKLRD 437 will be 21 years and 3 months’ imprisonment. Of course, having received full credit for his pleas of guilty, this will be reduced by a third. As the cocaine is split into three charges, an appropriate sentence has to be imposed on each charge.

Tsang Wai-yip, would you stand, please? On the 1st charge, which relates to 713 grammes of cocaine, the starting point will 20 years and 6 months, and that is reduced to 13 years 8 months’ imprisonment. On Charge 4, for 17.8 grammes of cocaine, the starting point will be 5½ years reduced to 3 years and 8 months. On Charge 5, for 143 grammes of cocaine, the starting point will be 10 years and 3 months’ imprisonment reduced to 6 years and 10 months’ imprisonment. To a large extent, these will run concurrently except that I shall order that 6 months on Charge 5 to run consecutively to the sentence on Charge 1, and this makes a total of 14 years and 2 months’ imprisonment.

The large sum of money which was found in your flat will be forfeited to the government under the terms of the disposal order I have made for the exhibits.

(Reasons for sentence for A2)

COURT: The 2nd defendant stated that he had been given free of charge by the 1st defendant the 17.8 grammes of cocaine which is the subject of the 2nd charge. I do not accept this was a free gift but whether it was or it was not makes no difference. I propose to ignore for present purposes the record of convictions. They are of completely different nature to these present offences.

On arrest, the 2nd defendant had $63,000-odd in his possession, and in the circumstances of his arrest, that is in itself a highly suspicious fact which again makes no difference because he is not charged with trafficking in drugs.

There was, however, in his possession a forged ID card in the name of somebody called Lau Chak-hung (Charge 3). When the 2nd defendant’s house was searched, the Customs officers found there at the bottom of a table two further forged ID cards also in the same name which bears no relationship to the defendant, and at the police -- not the police station, at the place where he was arrested, he stayed silent and thereafter he stayed silent as well. It was while he was at the police station that a forged document called an acknowledgement of application for Hong Kong permanent identity card was discovered. That is the subject of Charge 8.

The drugs in the possession of the 2nd defendant called for a basic starting point of 18 months’ imprisonment. This follows the decision in HKSAR v Mok Cho Tik CACC 165/2000 in which other similar cases are reviewed. However, I consider with this quantity of cocaine that there was a considerable latent risk that at least a part of that cocaine would find its way to some other person or persons, and accordingly I am going to take a 24 months’ starting point on that charge. That is the sentence the defendant would have received if he had pleaded not guilty and been convicted by the tribunal.

As for the forged identity cards in your possession, I do not accept that they were just bought for fun. Obviously, they were not but you have never revealed how they would be used. There were three forged ID cards altogether and the application acknowledging an application for an ID card. In the absence of exceptional circumstances, the sentence on a guilty plea for this kind of offence should be 12 months for one ID card. There were no exceptional circumstances here. The only reason for cards of this kind is to provide someone, either yourself or someone else, with a false identity for one reason or another.

As there were three such cards, I propose to take an overall starting point of 14 rather than 15 months for the reason I will disclose in a moment. I can see no justification for making these two entirely different groups of crime concurrent although I shall ensure by making mostly concurrent sentences for the ID-card offences that you end up with no more than a starting point of what would have been 15 months for those offences.

Would you stand, please? On the charge of possession of cocaine and because of your early plea of guilty, your sentence is 16 months’ imprisonment; on Charge 3, your sentence is 12 months’ imprisonment; on Charge 7, your sentence is 14 months’ imprisonment; and on Charge 8, your sentence is 6 months’ imprisonment.

Now, normally, I would on Charge 7 have taken 15 months instead of 14. I simply do that as a token of recognition for charitable donations that you have made. What I propose to do is to make the sentences on Charges 3, 7 and 8 to run concurrently with each other but consecutively to the sentence on Charge 2, and that leaves you with a sentence of 30 months’ imprisonment. That is all.

(Discussion re sentence of Charge 6)

COURT: 3 months’ imprisonment. Concurrent.

Court rises - 10.15 am

26 July 2018