HKSAR v. Yung Man Yiu, Andy

HCCC 102/2022 [2023] HKCFI 213 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CRIMINAL CASE NO 102 OF 2022 ________________________ BETWEEN   HKSAR     and
	YUNG Man-yiu, Andy (翁文耀)	Defendant

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Before:

Hon Campbell-Moffat J in Court

Date of Hearing:	18 January 2023
Date of Sentence:	18 January 2023
Date of Reasons for Sentence:	18 January 2023

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to one count of trafficking in dangerous drugs, contrary to s4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134 before the Eastern Magistrates’ Courts on 27 June 2022.

2.He had been intercepted on 19 October 2020 outside Yeung King House, Lai King Estate, Kwai Chung, New Territories by police officers who were carrying out an anti-narcotics operation.  Upon search 30 plastic bags of cocaine were recovered from him; the narcotic content of which was 3.03g; 13 plastic bags of ice were recovered with a narcotic content of 65.88g and 17 plastic bags of ketamine were recovered with a narcotic content of 22g.  The police also seized $8,405 in cash and four mobile phones. Upon arrest and caution the defendant admitted he was trafficking to earn money as he was unemployed because of the pandemic.  The street value of the drugs in his possession is said to be in the region of HK$67,154.00.

3.The defendant has a substantial criminal record dating back to 1993 when he was 17 years of age.  His first matter relating to drugs was in 1994.  He has been prosecuted for possession four times and for trafficking in dangerous drugs once, but that was the last matter on his criminal record and he received a sentence of 7 years 4 months’ imprisonment. The defendant is now 47 years of age and single.  He was able to obtain some work since his last release, which was from Hei Ling Chau on 27 June 2020, but that work was affected by Covid and Ms See submits that this led to financial difficulties which inevitably resulted in him turning to trafficking in these drugs to make ends meet.  Notably this offending was just 4 months after his last release for trafficking in dangerous drugs.

4.This is a cocktail of drugs.  As such the court must consider the most appropriate sentence in all the circumstances of the case.  There are a number of different approaches to this exercise and therefore little is gained from a minute mathematical exercise.  For that reason, the figures relied upon below are usually rounded down where appropriate.  The amount of individual drugs recovered would attract the following sentences if dealt with individually:

Ice	65.88g	10 years 9 months
Ketamine	22g	4 years 7 months
Cocaine	3.03g	2 years 11 months
	Total	18 years 3 months

5.The total amount of narcotics recovered was 90.91g.  If each drug formed the full amount recovered, the sentence would be:

Ice	11 years 4 months
Ketamine	6 years 6 months
Cocaine	9 years 1 month

These figures more accurately reflect an appropriate band for the starting point for sentence after trial i.e. between 6 years 6 months and 11 years 4 months’ imprisonment.

6.Under the conversion test, I have considered the following:

a)  What amount of ice would attract the sentence for ketamine and cocaine at paragraph 4 above?

b)  What amount of ketamine would attract the sentence for ice and cocaine at paragraph 4 above?

c)  What amount of cocaine would attract the sentence for ice and ketamine at paragraph 4 above?

Sentence for individual drug	65.88g ice 10 years 8 months	22g ketamine 4 years 7 months	3.03g cocaine 3 years	Total amount of drug	Sentence for total
Ice	65.88g	4g	1g	70.88g	11 years
Ketamine	472g	22g	8g	499g	11 years
Cocaine	152g	9g	3.03g	158.0g	11 years

7.Under the ratio test, the drugs represent the following percentages of the whole narcotic content:

Drug	% of 90.91	Sentence if 100%	Sentence as a %
Ice	72.46	11 years 4 months	8 years 2 months
Ketamine	24.19	6 years 6 months	1 year 6 months
Cocaine	3.33	9 years 1 month	3 months
		Total	9 years 11 months

Conclusion

8.Having considered the calculations above, and the aggravating features of this case, I consider an appropriate starting point for sentence after trial is one of 11 years.  Thereafter, there is the aggravating feature that the defendant had a cocktail of drugs in his possession for onward sale separated into 60 separate bags.  For that latent risk, I intend to enhance his sentence by 3 months to 11 years 3 months.  He also committed this offence just 4 months after his last release for the same offence.  That too is an aggravating factor and therefore, whilst taking into consideration the issue of totality, I will enhance his sentence by a further 3 months to 11 years 6 months.  He will of course receive a full one third discount for his plea at the earliest opportunity which will result in a final sentence of 7 years 8 months’ imprisonment.

	(A P Campbell-Moffat)
	Judge of the Court of First Instance High Court

Mr Raymond HM Chan, SPP(Ag.)  of the Department of Justice, for HKSAR

Ms Sabrina See, instructed by Cheung & Co., assigned by the Director of Legal Aid, for the defendant