HKSAR v. Yim Ling Fung

HCCC 122/2023

[2023] HKCFI 2130

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 122 OF 2023

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BETWEEN

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to two counts of trafficking in dangerous drugs contrary to S4(1)(a)  and (3)  of the Dangerous Drugs Ordinance (“DDO”), Cap 134 before the Eastern Magistrates’ Courts on 8 May 2023.

Summary of Facts

2.On 1 May 2021, the police were carrying out an anti-narcotics operation in the vicinity of a village house situated at No 4-F, Ka Po North Tsuen, Sha Tau Kok Road, Ma Mei Ha, Fanling.  At 5:56 pm that day, the defendant entered the house using his own key and left at 7:21 pm carrying a brown paper bag in which the police found 143 re-sealable plastic bags containing variously, crack cocaine, ICE and ketamine.  These drugs form the basis of Count 1.  The defendant was arrested and cautioned and admitted selling the drugs to earn money.  The officers then entered the house from which the defendant had exited.  It was bereft of furniture.  There were two rooms, one of which was locked.  Using a key recovered from the defendant the police entered that room to find a number of items for packaging drugs as well as a safe.  The defendant opened the safe with a passcode.  Inside that safe, further crack cocaine, Ice, and Ketamine were found as well as 89 tablets of suspected ecstasy and 598 tablets of suspected Erimin 5.  The defendant was arrested and cautioned for the second time and repeated his earlier admission.  These drugs form the basis of Count 2.

3.The retail value in 2021 of the drugs recovered under Count 1 was HK$207,497.  The value of the drugs under Count 2 was HK$394,868.  The estimated street value of all of the drugs recovered was therefore in the region of HK$602,365.  This was a significant commercial operation spread over a range of drugs.  The house had been rented for this purpose since March 2021, when the defendant had paid 3 months’ rental at a cost of HK$7,000 per month, in advance.  Under VRI, the defendant maintained that drugs were delivered to the outside of the house and he was required to store them.  He did so by placing them in the safe.  He would then be informed to whom he was to deliver the various drugs.  He also stated that he had only been doing this for 2 days, he had no idea who the person was who left the drugs and instructed him as to delivery and he had not yet received any reward.

Antecedents & Mitigation

4.The defendant is 22 years of age and was educated up to secondary level 4.  Thereafter he trained as a chef but has been employed as a waiter, salesman, logistics worker and hotel receptionist.  At the time of his arrest he was a transport worker at HKIA.  He is single and was living with his parents at the time of his arrest.  The defendant was of previous good character.

5.Ms Lai, on behalf of the defendant, submits that he took part in this crime as a result of financial difficulties when a loan he had provided to a friend was not repaid.  He had foolishly looked for another source of income and had been recruited by someone to store and deliver drugs but had wanted to back out.  By this stage he was threatened by the main dealer to whom he had provided his home address.  In fear of retaliation he had agreed to continue.

Sentence

6.This is a cocktail of drugs arising out of the same events.  The total narcotics recovered were 22.08 g of Cocaine; 476.72 g of forms of methamphetamine (predominantly ICE)  and 309.92 g of Ketamine.  The total narcotic content of what was recovered was 808.72 g.

7.The sentencing guidelines for trafficking in Cocaine, ICE and Ketamine can be found in R v Lau Tak-ming & Others [1990] 2 HKLR 370; HKSAR v Tam Yi-chun [2014] 3 HKLRD 691 and Secretary for Justice v Hii Siew Cheng [ 2009] 1 HKLRD 1 respectively.  If these drugs were to be dealt with on an individual basis, the starting point for sentence for trafficking in 22.08 g of Cocaine would be 5 years 11 months’ imprisonment.  For trafficking in 476.72 g of ICE it would be 18 years 1 months’ imprisonment and for trafficking in 309.92 g of Ketamine the starting point for sentence after trial would be in the region of 9 years 1 months’ imprisonment.  If the defendant were simply to be sentenced upon that basis, he would receive a sentence in the region of 33 years 1 months’ imprisonment before consideration of any aggravating features, mitigation or discount.

8.But this is a cocktail of drugs.  I have considered the absurdity, conversion and ratio tests as described by HKSAR v Chan Yuk Leong CACC 318/2013 and other authorities and will not go into them the underlying calculations here.  Looking at totality, I consider that an overall starting point of 18 years 9 months to be appropriate before consideration of any aggravating factors.  However, there are two charges before the Court.  I considered that a starting point after trial of 12 years 9 months’ imprisonment to be appropriate in respect of Count 1 and 16 years in respect of Count 2.

9.This was a commercial enterprise in which this defendant took responsibility for the safe house for the storage of drugs in which he stored the drugs which he received in bulk, packaged them and then supplied them to others.  This was unlikely to be his business but he clearly carried out a role which was greater than being a simple courier of small amounts of drugs to end users and his participation allowed others to distance themselves from the risk of trafficking.  I have taken into account the principles laid down in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 and consider that an enhancement of 1 year to each of Counts 1 and 2 is appropriate and well as 1 year to each count for the latent risk that the supply and retail of combination of drugs causes more harm to society and encourages consumption.  The starting point for Count 1 will therefore be enhanced by 2 years to 14 years 9 months’ imprisonment and that of Count 2 will be enhanced by 2 years to 18 years’ imprisonment.  That additional 2 years should also be reflected in what I consider to be the correct overall sentence of 18 years 9 months, which will now be enhanced to 20 years 9 months’ imprisonment.

Conclusion

10.Having considered the methodology which can be applied to cases involving a cocktail of drugs, and both the mitigation advanced by Ms Lai, as well as the aggravating features of this case, a total sentence of 20 years 9 months’ imprisonment in all the circumstances is appropriate before consideration of the one third discount for the defendant’s plea entered at the earliest opportunity.

11.Under Count One, the defendant will receive a sentence of 14 years 9 months’ imprisonment, which, after discount for plea, will be a term of imprisonment of 9 years 10 months.  Under Count Two the defendant will receive a term of imprisonment of 18 years, which, after discount for plea, will be a term of 12 years’ imprisonment.  4 years of Count Two will be served consecutively to the sentence under Count One, making a total term of imprisonment of 13 years 10 months.

12.Order in terms of the application for forfeiture and disposal of exhibits under SS55 & 56 of the DDO, Cap 134 save for items 87 and 88 which will be returned to the defendant.

Ms Winnie Mok, SPP, on behalf of the Department of Justice, for the HKSAR

Ms Annie Lai, instructed by Messrs Foo & Li, assigned by the Director of Legal Aid, for the defendant