The officers’ attention was drawn to Yan Kim-yeung (hereafter “the accused”) who was seen to be carrying an orange-coloured plastic bag. The police expressed the view he was acting nervously. They intercepted the accused near Exit A of the Kowloon Bay MTR Station for enquiries.
The accused was searched and, in the orange-coloured plastic bag was found four transparent resealable plastic bags containing a substance suspected to be dangerous drugs.
As a result, the accused was arrested for trafficking in dangerous drugs and cautioned. Under caution, the accused stated he was in need of money and therefore helped others to deliver drugs. He said he had been promised a reward of $1,200 for delivering the drugs.
At the time of his interception, the accused had HK$317 on him and a mobile phone. A little bit later, he submitted to a video-recorded interview under caution. In the course of that interview, he admitted that he knew what he carried was ketamine and he got himself involved in the delivery of that drug for $1,200. The promise was quick money. At the time he agreed to traffic in dangerous drugs for others, it was because he owed money.
The material seized from the orange bag carried by the accused was analysed by the government chemist. It was found to contain 997 grammes of a solid containing 852 grammes of ketamine.
Procedural matters
The accused was charged with trafficking in dangerous drugs and was put up before a magistrate. On 5 July 2021, in committal proceedings, the accused pleaded guilty before Mr Daniel Tang Siu-hung, sitting as a permanent magistrate in the West Kowloon Magistracy. He admitted the Summary of Facts which appears in the papers. The learned magistrate committed him for sentence to this court.
Antecedents and Mitigation
The accused is an 18-year-old man born in Hong Kong. He is single. He has no previous convictions. He is unemployed. He lives with his father in a housing estate in Tin Shui Wai. His parents are divorced.
I have read three compelling mitigation letters. His father blames himself but remains in pretty much daily contact with his son. His father has made one mistake as far as I can see and that is blaming himself. The only person to blame in this case is the accused himself, but I understand the sentiment and I respect it.
Although his parents are divorced, it is fair to say that he comes from a close and loving family. He himself has expressed remorse and I believe that. He has started to become interested in working in the motor trade, and that is encouraging.
Amazingly, there is a letter from one of his former teachers. It is amazing because most teachers pretty much write off kids who don’t perform at school. This young man did not perform at school but yet the positivity that comes out of every line of that letter moves me very deeply.
Counsel for the accused has said that the accused intends to take up educational opportunities offered by the Commissioner for Correctional Services because his client realises he is going to be in gaol for a little while. That is good news and encourages me to take a somewhat more lenient approach to this case than otherwise would have been the case. But let us look at the other side of the account.
Sentencing Principles: Trafficking in Ketamine, Starting Point
For many years, the community of Hong Kong has taken a severe view of drug trafficking - particularly in relation to drugs such as ketamine. There are serious consequences for the user. There are serious consequences for the community. One of those consequences involves the deployment of medical and health facilities to help people who ingests these drugs.
The view of the community is reflected in the maximum sentences provided by section 4 of the Dangerous Drugs Ordinance. That provides for convictions on indictment that the maximum sentence is life imprisonment or a fine of $5 million. The view of the community is also reflected by the courts in the nature of the sentences and the levels of sentences traditionally passed for drug trafficking. The policy underlying the approach to sentencing for drug-trafficking cases is to impose what are called deterrent sentences. To this end, the courts have provided sentencing guidelines for various forms of dangerous drugs, including the drugs which are the subject of the charge in this case.
In relation to ketamine, the sentencing guidelines for trafficking in ketamine were outlined in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1. That case laid down guidelines for up to 1,000 grammes of ketamine. For trafficking in quantities between 600 grammes and 1,000 grammes, the range of sentence is between 12 and 14 years. Those sorts of sentences are imposed for a person who is convicted after trial.
Discount
The authorities demonstrate that a person who pleads guilty at the earliest practicable opportunity is ordinarily entitled to a discount from the appropriate starting point of 33 per cent, and the reference to that of course is HKSAR v Ngo Van Nam [2016] 5 HKLRD 1.
Role of the accused
It is also critical to determine the role of the accused, and for that, we can look at HKSAR v Herry Jane Yusuph [2021] HKLRD 290, [2020] HKCA 974. In that case, the Court of Appeal recognised that although the mathematical starting point for sentencing guidelines such as cocaine or ‘Ice’ or ketamine start upon the premise of sentencing for a courier or a storekeeper, there is a range of culpability that even if a trafficker can be characterised as, in this case, a courier. The Court of Appeal held that an accurate characterisation of the role of the accused is critical because, in appropriate cases, it would be open to the sentencing court to sentence the accused above or below the mathematical application of the relevant guideline. The Court of Appeal rejected the sentencing approach in trafficking in dangerous drugs where the sentence was based solely on narcotic content.
Application of Sentencing Principles
In order to fix the starting point for this case, an assessment of the role of the accused is critical. It seems to me that the conduct of the accused in the present case is that of a minor league courier. Yet it appears to me that leaving aside the fact that he has been shamelessly exploited in the present case, the role was simply to carry the ketamine a relatively short distance from one point to another point.
The arithmetic application of the sentencing guidelines for ketamine produces a starting point of 13 years and 3 months. After discount, that of 33 per cent, that would produce a sentence of 8 years and 10 months. As I say, the accused seems to me to be a minor-league courier for reward. It is also a terrible thing to see that the first criminal conviction of this young man is a conviction for trafficking in dangerous drugs and attracting a sentence of that level. What is worse is that he succumbed to this temptation as a means of providing a short-term solution to his financial difficulties. This must be heartbreaking to his family. But what I have seen today is that there is a positive aspect to this case, and I intend to take it into account.
As a combination for the recognition of the role of the accused and the fact that he was a person of hitherto good character and he committed an act of monumental stupidity, I propose, together with the hope I repose in his reformation, I propose to reduce the discounted sentence further to 8 years and 4 months. If this is considered merciful or generous, so be it. I can only hope that the accused makes use of the time in prison to obtain some marketable qualifications to enable him to become employed after he emerges from prison. One of the admirable things that the Commissioner for Correctional Services provides are such courses to provide practical and academic training for prisoners. The accused was foolish in making the choice that he did to assist others to traffic in dangerous drugs. Now would be a good time to start acting smarter and get some qualifications.
The order of this court is that the accused be sentenced to a term of imprisonment of 8 years and 4 months.