HKSAR v. Yu Wing Hung

HCCC 120/2020

[2020] HKCFI 2275

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 120 OF 2020

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

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COURT:

Yu Wing-hung, you have pleaded guilty to one count of trafficking in dangerous drugs, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The facts have been read out today and you have agreed them.

In short, on 16 January 2019, you were found with two others inside a room within the Oriental Lander Hotel on Tong Mi Road in Mongkok. Upon search, you were found to be carrying three plastic bags which contained a total of 10.95 grammes of ‘Ice’. You were arrested and cautioned at that point and in response, you said, “I really intended to make some money only. Give me a chance.”

Other items were found on a table in the room. They included, amongst other things, four plastic bags which contained a total of 1.43 grammes of ‘Ice’. That is the amount which, added to the 10.95 grammes which you had upon you, amounts to 12.38 grammes and is the total of ‘Ice’ for which you have been charged.

There were also 49 plastic bags and two plastic boxes which contained a total of 72.1 grammes of cocaine, 30 tablets which contained 0.21 grammes of nimetazepam and two tablets containing 0.21 grammes of 3,4‑methylenedioxymethamphetamine. Other paraphernalia and cash was recovered from the table and from your person. These include three mobile phones, HK$6,630 in your pocket and HK$7,600 in cash on the table as well as packaging and an electronic scale.

You were clearly operating as a small-scale drugs retailer to the end user. In fact, when arrested and cautioned for the dangerous drugs found on the table, you said, “Ah sir, the dangerous drugs on the table and the pack of dangerous drugs on me are of the same batch. I fetched them in one whole batch and intended to ‘flower open’ them for sale.”

You maintained your co-operation in interview for you explained from whom you had purchased the drugs and that you had paid HK$30,000 for them with the intention of selling them all on. In fact, the prosecution suggests that the average price for that quantity and assortment of drugs in January 2019 was HK$134,722.

The court accepts that there is a considerable variation in the price of drugs on the street but doubts very much that the price you paid that day was anywhere near HK$30,000. However, the price of the drugs is not the issue here. You are to be sentenced for the quantity of drugs found within your possession that day and for the fact that you accept that you intended to traffic in them. You were not simply a courier; you had a clientele.

In interview, you said that you worked as a decorator, earning some HK$20,000 per month and that you were trafficking in dangerous drugs in order to make money for Chinese New Year. I doubt very much if that is true either, as you had gone so far as to rent a room specifically for your illegal sales and you had a dedicated telephone for that purpose.

You have a significant criminal record insofar as you were found guilty after trial in 2002 for trafficking in a substantial quantity of ‘Ice’, and you were sentenced to 15 years and 6 months’ imprisonment. That would have been, by my calculation, for approximately 400 grammes of ‘Ice’. Mr Chan tells me that you were released from that term of imprisonment in November 2011. In December 2017, you were brought before the courts again but this time for possession, for which you received DATC. That term of imprisonment and the subsequent DATC did absolutely nothing to reduce your attitude to dangerous drugs. There was not even a 12 months’ lapse between your release from DATC in April 2018 and being arrested for this offence.

Mr Chan on your behalf says that your offending is on the lower end of the scale and that you are remorseful and have been full and frank with the police throughout. He hinted that some of what was recovered may have been for personal consumption but he declined an opportunity for you to give evidence in respect of that and accepted the court would sentence you for trafficking in the whole amount.

The indictment which you faced, containing just one count of trafficking in dangerous drugs, encompasses a cocktail of drugs including cocaine, methamphetamines and nimetazepam. There are a number of ways of approaching the sentencing of a cocktail of drugs such as these. The first is simply to consider the appropriate sentence if they were individual drugs. The second is to calculate the sentence for the more or most serious drug and then to adjust the sentence upwards to take account of the remainder, and that falls under HKSAR v Yip Wai Yin and Another [2004] 3 HKC 367.

The Individual Approach

The sentencing guideline for the trafficking of cocaine is R v Lau Tak Ming [1990] 2 HKLR 370. For between 50 to 200 grammes, the starting point for sentence after trial is between 8 to 12 years. For 72.10 grammes of cocaine, the starting point would be in the region of 8 years and 6 months.

The sentencing guideline for methamphetamine hydrochloride, ‘Ice’, can be found in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. There is a total of 12.38 grammes of methamphetamine. Between 10 and 70 grammes of ‘Ice’ will attract a starting point for sentence after trial of between 7 to 11 years, and therefore the starting point for 12.38 grammes will be in the region of 7 years.

The 0.21 grammes of 3,4‑methylenedioxymethamphetamine, commonly referred to as ‘Ecstasy’, falls to be considered under Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1. Amounts up to 1 gramme are to be sentenced at the discretion of the court. That leaves the nimetazepam which is far less significant than the other drugs recovered and although there were 30 tablets, the narcotic content was 0.21 grammes. HKSAR v Wong Kin Kau [2010] 4 HKC 443 applies.

The sentencing guidelines for ketamine and ‘Ecstasy’ are considered suitable also for nimetazepam. Therefore, as with the ‘Ecstasy’ the court has a discretion as to the appropriate sentence up to 1 gramme. The total of 0.42 grammes of ‘Ecstasy’ and nimetazepam would warrant a sentence of 6 months.

If the court simply added together the sentences for each type of drug, the defendant would be facing a starting point for sentence in the order of 16 years without consideration of a number of different drugs he possessed for sale at one time and the criminal record of the defendant. I therefore consider this the upper benchmark for sentencing of drugs without any aggravating features or mitigation yet taken into account.

The Combined Approach

The total narcotic content of all drugs recovered is 84.9 grammes, of which 72.10 was cocaine. The drug which therefore makes up the bulk of the narcotic seized is the 72.10 of cocaine, for which a starting point after trial for sentence would be 8 years and 6 months’ imprisonment. If all of the drugs recovered were cocaine, the appropriate starting point for sentence after trial would be 9 years.

That leaves the 12.38 grammes of ‘Ice’ and the 0.42 grammes of ‘Ecstasy’ and nimetazepam. Since HKSAR v Tam Yi Chun, ‘Ice’ has been considered a more potent drug than cocaine or heroin. If all the drugs recovered were ‘Ice’, then the appropriate starting point for sentence after trial would be 11 years and 3 months. I consider this the next lower benchmark for considering the appropriate sentence on the facts of this case.

If, therefore, the cocaine forms the bulk of the narcotic content, by how much should the sentence of 8 years and 6 months for the cocaine be enhanced to take account of the lesser quantity but more potent ‘Ice’? That should fall somewhere between 9 years and 11 years 3 months.

HKSAR v Wong Kin Kau (supra) explains how one converts dissimilar drugs to take account of the varying quantity and narcotic content of multiple drugs seized. The difficulty which arises with this approach is that the scale of sentence for dangerous drugs diminishes as the quantity increases such that 5 years’ imprisonment is appropriate for 10 grammes of cocaine and 5 grammes of ‘Ice’, yet 15 years’ imprisonment is suitable for 400 grammes of cocaine and 300 grammes of ‘Ice’. One can easily see that the ratio reduces from two-to-one to four-to-three.

However, in this case, we have a smaller amount of dangerous drugs and therefore the defendant obtains the greatest benefit. The 7 years which the defendant would receive for 12.38 grammes of ‘Ice’ is equivalent to 35 grammes of cocaine. If I add the 35 grammes of cocaine to the 72.10 grammes of cocaine recovered, that makes a total of 107.10 grammes of cocaine which attracts a sentence of 9 years 6 months.

I consider that the combined approach is to be preferred for the purpose of sentencing in this matter as it better reflects your culpability. I adopt a starting point of 9 years and 6 months for the cocaine and ‘Ice’, and I will add 3 months for the 30 tablets of nimetazepam and two tablets of ‘Ecstasy’. This makes 9 years and 9 months.

There is also, however, the aggravating feature that you had several different types of drugs for sale that day. In HKSAR v Wan Lau Mei [2014] 4 HKC 75, CACC 389/2013 at paragraph 28, the Court of Appeal noted that a trafficker in several drugs can sell to a wider market than a trafficker in just a single type of drugs. Taking into account the principle of totality, I will, nevertheless, add an additional sentence of 6 months for this aggravating factor which makes a total of 10 years and 3 months.

Lastly, there is the issue of your criminal record which includes a previous and serious offence of trafficking as well as reoffending very soon after your release from DATC in April 2018. Again, being conscious of the principle of totality but also conscious of the fact you appear to have no respect for the criminal justice system, for the public at large or for yourself, you and others must know that you cannot reoffend with impunity.

You are an adult. You have skills you can use without resorting to selling drugs. You committed this offence with your eyes wide open, and as with all other recidivists, you must know that you put yourself at risk of the court marking your recidivism with a longer term of imprisonment. But bearing in mind the sentence you are to receive, I mark this with an additional sentence of only 6 months’ imprisonment, making a total of 10 years 9 months, which I note is in any event well below my second benchmark.

You are entitled, of course, to a full one-third discount for your early indication of a plea of guilty. You will go to prison for 7 years and 2 months.