HKSAR v. Yip Chun Kit

HCCC 93/2021

[2022] HKCFI 3117

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 93 OF 2021

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

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COURT: Mr Yip Chun-kit has pleaded guilty to one count of trafficking in dangerous drugs. He and the co‑defendant, Leung, unlawfully trafficked in a dangerous drug, namely, 2.93 kilogrammes of a solid containing 1.64 kilogrammes of cocaine.

This offence was committed on 19 February 2020 at Customs Arrival Hall B, Passenger Terminal Building 1, Hong Kong International Airport. The defendant pleaded guilty at the earliest opportunity. He decided to give information to the Customs and Excise Department relating to those that paid him to traffic dangerous drugs as well as his co‑defendant Leung. He made six non-prejudicial statements and gave evidence against Leung in her trial, HCCC 92/2021.

Leung was acquitted after trial. Nevertheless, I observed the defendant give evidence and compared his oral evidence to his non-prejudicial statements. I found he came up to proof and was a good witness. That verdict has no bearing on the discount that is justified.

On the offence date, 19 February 2020, the defendant and Leung returned to Hong Kong on different international flights. It was pre-planned that they would meet in a smoking room inside the restricted area of the airport before Immigration Control. There the defendant would give Leung a rucksack he picked up in Brazil, whilst she would give him her suitcase she brought back from Japan. The rucksack contained the dangerous drugs.

The smoking room had no CCTV, but there was a Customs Officer in plain clothes who had followed them in and observed the exchange of luggage. Leung left first and was arrested by Customs after she attempted to clear customs. The defendant followed her a few minutes later and was also arrested.

This defendant was paid $20,000 to undertake this trip and bring back the rucksack. Leung was paid $6,000 to fly to and from Japan to meet the defendant to swap luggage. Leung is in her early 50s and perhaps would have attracted no attention or less attention than the defendant as she was coming from Japan, whilst he was coming from Brazil. That I suspect was the purpose of the exchange of luggage before Customs.

Mitigation

The defendant is now 29 years old, single and had no previous criminal convictions. He lives with his family and is the only son with two elder sisters. I have heard full mitigation put forward on his behalf. Everything that can be said has been said. There are letters from the defendant, his family and five social workers that have known the defendant for many years before this offence.

I have also received information relating to further education the defendant has undertaken whilst in remand. He is determined to better himself. I have taken into account the contents of the mitigation letters.

The defendant explains that he had a job which he lost and could not replace, because of the start of the pandemic in early 2020. An old school friend introduced him to this job of flying to Brazil and bringing back jade stones for $20,000. This old school friend actually went to Brazil but did not fly with the defendant there nor fly back with him. The defendant, not long after his arrest, realised that his friend was, in fact, one of the organisers of this criminal activity and he had been taken advantage of.

He expresses remorse and is most sorry for disappointing his family who have not given up on him. The letter from his family asks for leniency on his behalf and stresses his genuine remorse. There are a total of five very detailed letters from social workers who have had contact with him over the years from quite an early age. They describe him as being shy but hardworking and kind. He became more self‑motivated and was full of dreams as a teenager. He put himself forward for voluntary work and participated in Caritas programmes, for example, for self-development. They all truly believe he has reflected on his errors and will not reoffend again. He is studying an Open University course as well as a Bible course, whilst in remand.

Mr Boyton has referred me to HKSAR v Herry Jane Yusupf, CACC 93/2019, and the six-step approach to sentencing those that traffic dangerous drugs. The defendant is a courier. His role was to bring the drugs back to Hong Kong. Therefore, his sentence is to be determined by the relevant tariff and quantity of cocaine. There is, of course, the aggravating factor of there being an international element to the facts.

I have referred myself to the authority of R v Lau Tak Ming where the guidelines for trafficking heroin is set out, and AG v Pedro Nel Rojas where the Court of Appeal held that the sentencing tariffs in Lau Tak Ming apply equally to cases of trafficking in cocaine.

Mathematically speaking, trafficking in 1.64 kilogrammes of cocaine will attract a starting point of 23 years and 6 months’ imprisonment. Bearing in mind the quantity is over a kilogramme, the enhancement for the aggravating factor of there being an international element will be 2 years’ imprisonment. Therefore, the starting point is one of 25 years and 6 months’ imprisonment.

Discount

The defendant has pleaded guilty at the earliest opportunity and is, of course, entitled to a discount of one-third from that starting point. In this case, the defendant has given full assistance to the authorities which entitles him to a further discount.

Mr Boyton has stressed that he not only gave many non‑prejudicial statements but also agreed to give evidence and ultimately did give evidence against Leung. He should be entitled to a total of up to 50 per cent discount, and the prosecution agrees.

Sentence

When a defendant pleads guilty to such a serious charge with such serious facts, most of the mitigation, including his previous clear record and remorse, is part and parcel of the discount to be applied, the one-third discount. Unless there is other exceptional mitigation, there will be no further discount. There is, of course, a possibility of a further discount if assistance is given to the authorities.

The defendant gave evidence against Leung as a prosecution witness, and he came up to proof as a prosecution witness. I have been referred to and I have taken into account the authorities of Z v HKSAR as well as HKSAR v Lo Sze Tung, Stephanie. For his assistance and decision to give evidence, I intend to give the defendant a total discount of 50 per cent. I find it justifiable.

Accordingly, I apply a 50 per cent discount to the starting point of 25 years and 6 months, and I impose a sentence of 12 years and 9 months. The sixth step in the sentencing approach of Herry Jane Yusupf is to stand back and observe the overall sentence to ensure that it is fair, balanced and just in all the circumstances of the offence and the offender; to ensure that it is not a crushing sentence.

This step is particularly relevant to cases with multiple offences, or where there are several aggravating factors, but this principle is relevant to any sentence. Any sentence must still contain the elements of deterrence and be appropriately punitive. A severe or harsh sentence is not by that reason alone necessarily unfair, unbalanced or unjust. Here, in approaching this principle, I have weighed it against the sentence of 12 years and 9 months, the charge involved and all mitigation.

Standing back, I find an overall term of 12 years and 3 months, a fair and balanced sentence. Accordingly, Defendant, you are sentenced to 12 years and 3 months’ imprisonment.