HKSAR v. Yeung Ho Kwan

HCCC 71/2023

[2023] HKCFI 2771

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 71 OF 2023

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

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COURT: The defendant pleaded guilty in the Magistrate’s Court to two counts of trafficking in a dangerous drug and was convicted. He was committed for sentence and today confirms his plea and agreement to the Summary of Facts.

The particulars of the two counts are as follows; On 28 July 2021, near the junction of Prince Edward Road West and Nathan Road, Kowloon, Hong Kong, the defendant unlawfully trafficked in a dangerous drug, namely, 23.1 grammes of a solid containing 22.3 grammes of cocaine. Those drugs were found in two bags on his person.

The particulars of the 2^nd count are that on the same day at Room 632, 6^th Floor, Metropark Hotel Mongkok, Kowloon, the defendant unlawfully trafficked in a dangerous drug, namely, 47.8 grammes of a solid containing 45.5 grammes of cocaine. Those drugs were found inside a safe in Room 632 which had been rented by the defendant for two nights from 27 July 2021.

The Summary of Facts are straightforward. In the late afternoon of 28 July 2021, the defendant was stopped and searched coming out of the Metropark Hotel. The drugs of the 1^st count were found and under caution the defendant said they were for his own consumption.

He subsequently admitted that he had rented a hotel room in that hotel, Room 632, and had kept more dangerous drugs inside the safe, giving the police the passcode for that safe. The police found two more bags of cocaine inside it.

The defendant explained that as a result of the pandemic, his work and income had been seriously impacted. He committed these offences to earn fast money to alleviate financial difficulties at home.

Mitigation

The defendant lives with his father and two elder sisters at the time of the offences. His mother had passed away two years earlier. He is now 33 years old and single. He was working as a decoration or renovation worker at the time of his arrest. He is not a man with a clear record and has seven previous convictions of which the majority are related to dangerous drugs. On this occasion, I do not find his record an aggravating factor which would attract an enhancement of his sentence.

I have read and heard mitigation from Ms Tsang who has said all she can say on behalf of the defendant in mitigation. The defendant’s best mitigation is his plea of guilty at the earliest opportunity. He was a habitual user of cocaine and ketamine. When arrested and remanded, he tested positive for cocaine and ketamine. There was no submission that a significant proportion of the drugs found on that day were for the defendant’s own consumption. I have also read a mitigation letter from the defendant.

Sentencing

I have considered the approach to the sentence of trafficking dangerous drugs as laid down by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290. I have considered the six-step sentencing approach set out in that authority. In this case, I accept and I am satisfied that the defendant’s role was one of storekeeper and courier. Therefore, his sentence is to be determined by the relevant tariff and the quantity of the dangerous drugs involved.

I would add the drugs for both charges together and consider a global starting point. The tariff for trafficking in cocaine follows the tariff for trafficking in heroin, AG v Pedro Nel Rojas [1994] 1 HKC 342.

For this present case, the tariffs follow that laid down in R v Lau Tak Ming and Others [1990] 2 HKLR 370, and where between 50 to 200 grammes is involved, this will attract a sentence of between 8 to 12 years’ imprisonment after trial. In the present case, for the total amount of 67.8 grammes of cocaine seized in both counts, I will adopt an 8 years and 6 months starting point.

Conclusion

I have considered the facts of this case, the drugs of both counts, all mitigation, and the fact that the defendant pleaded at the earliest opportunity. The defendant is entitled to a full one-third discount.

After that discount is applied to the starting point of 8 years and 6 months’ imprisonment, the sentence is reduced to 5 years and 8 months’ imprisonment.

Accordingly, defendant, you are sentenced to 5 years and 8 months’ imprisonment for Counts 1 and 2. Both sentences are to be served concurrently, a total of 5 years and 8 months’ imprisonment.