HKSAR v. Yip Wai Chung

HCCC 49/2020

[2020] HKCFI 2429

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 49 OF 2020

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

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COURT: The defendant had pleaded guilty to one count of trafficking in a dangerous drug, namely 73.70 grammes of crystalline solid containing 73.18 grammes of methamphetamine hydrochloride, 61.10 grammes of a powder containing 52.90 grammes of ketamine, 14 tablets containing 1.91 grammes of 3,4-methylenedioxymethamphetamine, 79 tablets containing 0.54 grammes of nimetazepam and 13.61 grammes of cannabis in herbal form.

The facts are not unusual in that on the evening of 4 December 2018, the defendant was inside a private car and he was in the driver seat and upon interception, a search was conducted and cash of $22,620 was found in his possession and inside the car were found the drugs which are the subject matter of this charge.

Upon being arrested and cautioned, the defendant said that he was delivering the stuff for a small reward. He subsequently in a video-recorded interview said that he was given a car key and instructed to take the car and drive it to the place where he was arrested. He said an unknown person then told him that he would get a reward of $1,400. He had driven to the Tai Kok Tsui Promenade and someone had passed the dangerous drugs to him. He placed the drugs inside the car.

The defendant’s DNA was found on some of the packaging of the drugs. The total street value of the drugs is estimated to be about HK$66,068.

The defendant is aged 26 and has previous convictions, but nothing to do with drugs. Those were for gambling for which he was fined. The defendant was unemployed at the time of his arrest. In mitigation, Mr Hui submitted a letter from the defendant’s mother who asked for leniency. Very often it is the parents who come to the assistance of an arrested person to plead for leniency. The defendant is aged 26 and he should know better. The only real mitigation in this case is really his early plea, which is an indication of his remorse.

Now, Mr Hui has very, very helpfully worked out the level of sentence in this case because it concerns a cocktail of different drugs. It is clear from previous cases, particularly in the case of HKSAR v Wong Kin Kau in 2010 that the sentencing for nimetazepam and ecstasy have been equated with ketamine. That means the 3,4- methylenedioxymethamphetamine is on a par with ketamine.

Now, the sentencing guidelines for ketamine has been laid down in the case of Hii Siew Cheng in 2009. In relation to the ketamine, the amount in this case would amount to about 55.35 grammes, which would include the ecstasy and nimetazepam. In the case of Hii Siew Cheng it was recommended that for trafficking in between 50 to 300 grammes would merit a sentencing starting point after trial of 6 to 9 years’ imprisonment. As for the methamphetamine hydrochloride, the guideline sentence have been laid down in the case of Tam Yi Chun in 2014. In this case, for the amount of between 70 to 300 grammes, the recommended starting point sentence is between 11 to 15 years.

Mr Hui has very helpfully gone through the three tests which is recommended by the Court of Appeal to determine the appropriate starting point when dealing with the cocktail of drugs. The three tests have been called the absurdity test, the conversion test and the ratio test. I accept Mr Hui’s submission that the cannabis in herbal form is really minimal as compared to the other drugs and I will not take it into account.

Now, in dealing with the absurdity test, which means that it is assumed that the entire quantity contains only the most serious drug, the starting point would be come to about 12 years’ imprisonment. As for the conversion test, if the ketamine were converted into methamphetamine hydrochloride, then the starting point sentence will be around 11 years and 3 months’ imprisonment. Then we come to the ratio test where the ratio by weight of the individual drugs is calculated to the total weight of the dangerous drugs. The starting point would then be 9 years and 10 months’ imprisonment.

Now, Mr Hui submits that this court should adopt the sentence which is calculated according to the ratio test. I will do so because this is actually the first serious offence that the defendant has ever committed and he will be facing the clang of the prison gates for the first time in his life. So I will therefore, in the circumstances, adopt the starting point of 9 years and 10 months. Giving the defendant the full one-third discount will bring the sentence down to about 6 years and 7 months. So I will sentence the defendant to 6½ years.