HKSAR v. Yip Kwai Yeung

DCCC 818/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 818 OF 2012

____________

____________

________________________________

REASONS FOR SENTENCE

________________________________

1.The defendant pleads guilty to one charge of trafficking in 13.36 grammes of a solid containing 11.33 grammes of cocaine and 10.05 grammes of a powder containing 7.27 grammes of ketamine, contrary to section 4 of the Dangerous Drugs Ordinance, Chapter 134.

2.In summary on the 15th June this year the police conducted an anti-narcotics operation in Sau Mau Ping.  At about 6.45 a.m. the police approached a light goods vehicle parked outside Sau Mei House.  The defendant was sitting in the passenger seat and male Li Fun Shing in the driver’s seat.  The cocaine and ketamine, contained in a total of 55 plastic bags, were found in the sling bag carried by the defendant.  Cash in the sum of $59,900 was also found in the glove compartment of the vehicle.

3.In passing sentence I have carefully considered everything said on behalf of the defendant by Mr Jim, in particular that the defendant is suffering from kidney problems and is now waiting to see a specialist.      I also take into account that the defendant has no similar convictions for trafficking in dangerous drugs.

4.The courts have equated for sentencing purposes cocaine with heroin (seeAttorney General v Pedro Nel Rojas [1994] 2 HKCLR 69).    InR v Lau Tak-ming[1990] 2 HKLR 370 the Court of Appeal laid down guidelines for trafficking in heroin.  The court said that the sentence upon conviction after trial where the quantity of narcotic is between                 10 and 50 grammes is between 5 and 8 years imprisonment. 

5.In the Secretary for Justice v Hii Siew-cheng[2008] 3 HKC 325 the Court of Appeal laid down guidelines for trafficking in ketamine.  Where the narcotic content is between 1 and 10 grammes sentence after trial falls within the range of 2-4years imprisonment. 

6.Following these guidelines the proper starting points after trial would be 5 years imprisonment for 11.33 grammes of cocaine and 3 years and 4 months imprisonment for 7.27 grammes of ketamine.

7.In the circumstances of the case I agree with Mr Jim that the court should adopt the ‘combined’ approach to sentence.  In adopting this approach the court must give proper regard to totality and in so doing should not overlook that had all the drugs been cocaine the starting point would not exceed 5 years and 9 months imprisonment. I am satisfied an overall starting point of 5 years and 3 months is appropriate.

Own use

8.The prosecution accept that the defendant had 10% of the drugs for his own consumption.  This is largely based on the fact that between 2004 and 2009 the defendant has been convicted seven times for possession of dangerous drugs.  In the circumstances I am satisfied I can in passing sentence take into account a small part of the drugs were for the defendant’s own use. 

9. In deciding how much weight should be attached to the fact some of the drugs were for the defendant’s own use I have considered the decision in HKSAR v. Wong Suet-hau [2002] 1 HKLRD 69, in particular paragraphs 33 and 34.  I am satisfied this makes only slight difference to the sentence to be imposed.  I reduce the starting point by 3 months to one of 5 years imprisonment. 

Ill-health

10.Whilst one has sympathy with anyone suffering from serious illness I am satisfied in the circumstances of this case this does not amount to exceptional circumstances to reduce an otherwise appropriate sentence (see for example HKSAR v Tse Tat-fung & others              CACC 167/2008 at paragraphs 359-366).  Clearly having arranged for the defendant to see a specialist the Correctional Services are, at present, in a position to treat the defendant.  If the health of the defendant deteriorates whereby the Correctional Services can no longer properly take care of him the defendant can petition the Chief Executive for clemency.

Sentence

11.Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 3 years and 4 months imprisonment.