HKSAR v. Sit Yan Yi and Another

HCCC 64/2020

[2020] HKCFI 2274

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 64 OF 2020

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

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COURT: Sit Yan-yi, you have pleaded guilty today to one count of trafficking in dangerous drugs and one count of possession of dangerous drugs, contrary to section 4(1)(a) and (3) and section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134.

Chan Ka-ho, you have today pleaded guilty to one count of possession of dangerous drugs, contrary to sections 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134.

You are charged jointly upon the same indictment because this offending arose out of the same incident. You, Ms Sit, booked a hotel room on 2 December 2018 at the Iclub Ma Tau Wai Hotel, Ha Heung Road. You and Mr Chan entered the room but failed to book out the following day, and so the room was entered by hotel staff who found the debris of drug consumption in the room itself and dangerous drugs inside the room safe. By the time that you returned to your hotel room later that afternoon, the police had been alerted and you were arrested.

Upon search, Ms Sit, you were found to be in possession of nine tablets containing a total of 0.05 grammes of nimetazepam. The safe contained one packet which in itself contained 24.2 grammes of ‘Ice’ and another packet containing 0.28 grammes of herbal cannabis.

Other items were also found within the safe which indicated both consumption and onward sale. These were a glass container with liquid inside found to contain traces of ‘Ice’, a plastic bag with traces of cocaine, a glass tube containing ‘Ice’, eight empty resealable plastic bags, a digital scale and five straws.

Ms Sit, your DNA was found upon the plastic bag which contained the 24.2 grammes of ‘Ice’ found within the locked safe. Mr Chan, you were also searched and 0.41 grammes of cocaine was recovered found from your jacket pocket as well as 0.08 grammes of ‘Ice’.

On arrest and after caution, Ms Sit, you suggested that someone called Roy had invited you to come up and consume ‘Ice’. Mr Chan, you said that the cocaine and the ‘Ice’ recovered from your jacket were for your own consumption and you too mentioned a person called Roy. You said that the items in the room belonged to Roy. Little else is known about Roy save that you were both seen entering and leaving the room and two other unknown males were also seen entering and leaving. One of those two men was seen to visit three times that night, remaining for 10, 2, and 21 minutes respectively between 10.47 pm on 2 December 2018 and 4.32 am the next morning. The second male was seen to enter just the once but for 14 minutes.

By your pleas, you, Ms Sit, admit to trafficking in the 24.2 grammes of ‘Ice’ and to possessing the nimetazepam and the herbal cannabis. Mr Chan, you confirm what you actually said upon arrest and that was that the cocaine and the ‘Ice’ were in your possession for your own consumption.

Ms Sit, you are now 31 years of age and although you were born in mainland China, you are the holder of a Hong Kong permanent identity card. You have a criminal record which indicates two offences, both in 2018, under which you received a fine for gambling. This is the first time you have appeared before the courts for drugs offences, and Mr Shaw tells the court on your behalf that you are now indeed remorseful because you have had some time now, considerable time in fact, to consider your situation. I have read all the documents in support which have been submitted on your behalf.

The relevant authority for trafficking in 24.2 grammes of ‘Ice’ is HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. For trafficking in 24.2 grammes of ‘Ice’, the starting point for the range of sentencing for between 10 and 70 grammes is 7 to 11 years. For 24.2 grammes, the starting point after trial would be 8 years before discount for your plea of guilty which you indicated at the very first opportunity, and that would reduce your sentence on Count 1 to 64 months or 5 years and 4 months.

Under Count 2, you are charged with being in possession of the nine tablets or 0.05 grammes of nimetazepam and the 0.28 grammes of herbal cannabis. These are truly insignificant amounts and in all likelihood for your own personal consumption. I consider there to be no latent risk attached and will not enhance the sentence for the possession by reason of that aggravating factor. For their possession, I therefore intend to add just 3 months’ imprisonment each for each type of drug which will make an additional sentence of 4 months after discount for your plea. When added to your sentence for the ‘Ice’, that will make a total sentence after discount of 5 years and 8 months’ imprisonment.

Mr Chan, you are 34 years of age. You were also born in mainland China and you hold a Hong Kong permanent identity card. Unlike Ms Sit, you have several previous convictions for possession and trafficking in dangerous drugs, the first of which was in 2006 when, for possession, you received detention centre. In 2008, also for possession, you received a 2-month sentence which was suspended for 12 months. You appeared to stay out of trouble until 2013 when you received a period of 24 months’ imprisonment for two offences of trafficking in dangerous drugs. That did not deter you as in 2015 you were once again found in possession of dangerous drugs and received DATC.

Mr Boyton on your behalf has told me in his submissions in writing that you are employed as an air-conditioning technician, are still employed as a technician, and you are drug-free. That is to your credit.

You have a significant history of drug offending and are clearly, or at least were clearly, an abuser of drugs. You have had the benefit of detention centre and drug addiction treatment centre and it has not been of any effect. You are now a mature man and should know better. I do not consider that any other disposal than a term of imprisonment is suitable in this case because you need to know that with each arrest, even for possession, you will receive a heavier sentence. The issue is whether it would be appropriate in all the circumstances to suspend it to ensure your future good behaviour.

You cannot take drugs with impunity. Even if you were only a consumer and not currently trafficking in dangerous drugs, without you as a client, there would be no couriers or drug traffickers. There would be no crime associated with feeding a habit. You are still young enough to have a full and rewarding life ahead of you, especially as you have skills and that will not be the case if you continue to consume drugs.

Mr Boyton in his written submissions sought to distance you from Ms Sit and to suggest that you should more properly have been dealt with in the Magistrates’ Court. However, there is another way of looking at this. If not for you, would Ms Sit have returned to this hotel room apparently operated, you both say, by Roy? Why was she with you if it was not to supply you with further drugs? You facilitated her crime by being the consumer. You are not wholly innocent in this matter. You knew full well what you were doing and you asked Ms Sit to supply you, knowing the risk that she was taking.

Mr Boyton has referred the court to a number of authorities including HKSAR v Mok Cho Tik [2001] 1 HKC 261, HKSAR v Ramirez [2015] 1 HKLRD 966, HKSAR v Lacroix [2010] 2 HKC 327, HKSAR v Cheung Hoi Lan, HCMA 93/2003, R v So Ma Kwai [1993] 1 HKCLR 1 and R v Lam Wai Ping, HCMA 239/1997, all of which I have considered.

Mr Boyton also points to the delay in dealing with this matter. Once again, he submits that had it not been for the nexus between you, his client, and Ms Sit, his client would not have had this matter over his head for so long. I feel I must reiterate that which I have referred to earlier. Mr Chan, you committed this offence with the assistance of Ms Sit. She finds herself in a far more extreme situation because of you and users like you. It ill behoves you to say that you wish to have the benefits of the relationship with Ms Sit for the purpose of buying drugs from her but none of the burden when you are caught red-handed with her.

Much of the delay in this matter has been occasioned by circumstances outwith anyone’s control. Members of the public have suffered far greater injury to their livelihoods and mental health and physical health during 2020. You have been on bail. I do not consider you are entitled to any discount in the circumstances of this case and this offending for the fact that it has taken some time for the matter to reach this court for the purpose of sentencing and you will, in any event, obtain full discount for your early plea.

It is for the court to determine the appropriate sentence in the interest of justice. You are, or at least you were, an abuser of drugs. You have been for some time, although I am now told you are clean. And you are also in employment and save for your drug offending, you have no other offending.

HKSAR v Lacroix does not fall on all fours with this case as the defendant in that case had no previous record and yours is significant, showing drug abuse over some 14 years. However, you have kept out of trouble in the interim whilst on bail, and I do think it is significant if you are truly clean of drugs now, and I do not think there is any other latent risk. I therefore consider that a starting point for sentence in all the circumstances of this case should be one of imprisonment of 12 months.

After discount for your plea at the earliest opportunity, that sentence is reduced to one of 9 months. I intend to suspend it for 12 months.

(Discussion re calculation of sentence)

I intend to suspend it. So 8 months suspended for 12. Stay out of trouble, Mr Chan, for a further year, please. Concentrate on repairing air-conditioners.

2ND ACCUSED:  Yes, I know that.

COURT: Last chance because next time, next time you will be well and truly punished, okay? For heaven’s sake, there comes a point in time when you have to grow up.

2ND ACCUSED: Yes, I understand. I know that.

COURT: And say sorry to Ms Sit because she is the one in more trouble and you helped.

2ND ACCUSED: Thank you.