HKSAR v. Yip Chi Wai

HCCC 378/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 378 OF 2014

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Before: Hon Zervos J in Court

Date of Hearing: 11 November 2014

Date of Sentence: 11 November 2014

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REASONS FOR SENTENCE

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1.The defendant has pleaded guilty to trafficking in a dangerous drug. He entered his plea of guilty at the earliest opportunity in the Magistrate's Court and has been committed to this court for sentence.

2.The particulars of the offence are that on 6 January 2014, the defendant, inside Unit 3017, Tak Lok House, Tak Tin Estate, Kwun Tong, unlawfully trafficked in a dangerous drug, namely 184.99 g of a solid containing 87.92 g of cocaine and 36.85 g of a powder containing 27 g of ketamine.

3.In the afternoon of 6 January 2014, the police had mounted an anti-narcotics operation and put Unit 3017 under surveillance.  At about 4:49 pm the defendant was seen in the corridor of the 30th floor of Tak Lok House.  He walked to Unit 3017 and unlocked the metal gate and the wooden door behind it with keys in his possession.  At that moment, police officers approached and intercepted him.  His father was inside the unit in the living room.  The police produced and showed a search warrant to the defendant and his father which authorised them to enter and search the unit.

4.Upon a search of the unit the following items were found. In bedroom 1 on the mattress of the upper bunk bed, one pink plastic bag containing 478 resealable plastic bags.  In bedroom 2 inside a drawer of a desk, one magazine paper wrapping one resealable plastic bag containing 120 transparent resealable plastic bags each containing a quantity of cocaine, totalling 21.65 g of a solid containing 10.57 g of cocaine; in the space between the wall and the end of the bed, one plastic bag containing three magazine papers each containing two plastic bags, being in total six plastic bags, containing a total of 142.31 g of a solid containing 66.99 g of cocaine and two green plastic bags containing 137 and 1300 transparent resealable plastic bags, respectively; and inside a drawer of the bed, one T‑shirt wrapping one magazine paper containing one resealable plastic bag containing 119 plastic bags containing a total of 21.03 g of a solid containing 10.36 g of cocaine.  In the living room inside a wardrobe, three plastic bags, each containing 10 plastic bags, being in total 30 plastic bags, each containing a quantity of ketamine, totalling 36.85 g of a powder containing 27 g of ketamine.

5.The police upon enquiry found that bedroom 1 was occupied by the defendant and his father and bedroom 2 by the defendant's elder brother.  The father was interviewed and he denied that the drugs belonged to him but he did not know which of his sons the drugs belonged to.  The elder brother was eventually arrested and interviewed on 12 January 2014.  He claimed that he had moved out of the unit some two weeks before and denied that the drugs belonged to him.

6.Later on 11 February 2014, the police received a letter from the defendant’s legal representatives that he wished to make a further statement.  In a video recorded interview conducted on 25 February 2014, the defendant made a full admission that the drugs found in the unit belonged to him.  He said that in around September or October 2013, he met a man in a bar in Kowloon.  The man asked him to keep something for him for which he would receive a reward of $1000. The man gave him a mobile phone in order for them to keep in contact with each other.  In early January 2014, he received a call from an unknown man and was later given things to store by a middle‑aged man who paid him $1000.  He collected the things from the middle‑aged man from downstairs of his home.  On receiving the things, he hid them inside his elder brother's room and in the wardrobe in the living room as he did not want his father to discover them.  After he had stored away the things, he then waited for further instructions as to how to deal with them.  He spent the $1,000 dollar reward that was given to him.  He did not know what the things were and denied that he knew that they were dangerous drugs.  He said that the things belonged to him and were hidden inside his home without the knowledge of his father and elder brother.

7.Since the interview, the defendant admitted and accepted that he knowingly had possession of the drugs particularised in the charge for the purpose of unlawfully trafficking.

8.The market retail value of the total drugs seized was $246,463.

9.The defendant was in possession of two different types of dangerous drugs, cocaine and ketamine.  The sentencing tariffs for these two drugs are different, with the tariffs for cocaine being slightly higher than the tariffs for ketamine.  The quantity of cocaine was 87.92 g and the quantity of ketamine was 27 g.  In a situation like this, it is open to the court to take a combined approach when sentencing.  This involves calculation of the applicable sentence for the more or most serious drugs and then to taken into account the significant quantities of the less serious drugs.  See HKSAR v Yip Wai Yin and anor [2004]3 HKC 367; HKSAR v Chan Yuk Leong, CACC 318/2013, 8 April 2014, unreported.  In this case, it so happens that drugs of greatest quantity were the more serious drugs.  The starting point for a quantity of 87.92 g of cocaine is 9 years and 2 months’ imprisonment.  See R v Lau Tak-ming and ors [1990]2 HKLR 370; AG v Pedro Nel Rojas [1994]2 HKCLR 69.  The starting point for a quantity of 27 gof ketamine is 4 years and 10 months’ imprisonment.  See SJ v Hii Siew Cheng [2009]1 HKLRD 1.  The two tariff regimes reflect the seriousness of the offence in the term of imprisonment set at the base level and from which the tariffs are increased according to the quantity of drugs involved.  That is why, it is fairer to impose a sentence according to the set of tariff guidelines of the more or most serious drugs with appropriate adjustment, so as not to reflect twice the community’s opprobrium that is built in the starting point at the base level of the two sets of tariff guidelines.

10.The combined quantity of drugs is 114.92 g. According to the tariff guidelines applicable for cocaine, the starting point is 9 years and 9 months’ imprisonment.

11.The defendant was 17 years old at the time of the offence.  He is now 18 years old.  He lived with his father and older brother.  His parents divorced with his mother and sister living separately from his father, brother and himself.  He has not had contact with his mother and sister since then.  I am informed that he has a distant and strained relationship with his father and brother.  I have no doubt that the family breakup has had a deleterious impact on him.  He left school at an early age and has not had steady employment since then.

12.At his young age he already has a significant number of prior convictions for crimes involving violence and drugs.  The defendant was last sentenced to serve a term in a correctional institution on 28 December 2012 and was discharged on 3 July 2013.

13.I was concerned that he may have been admitting this offence and taking the complete brunt of it, in order to protect another or others, but I have been assured that is not the case and that he was solely responsible for the crime.  Given his background and circumstances, there is little by way of meaningful mitigation that can be advanced on his behalf except for his youth and plea of guilty for which he will receive a one third discount on the sentence to be imposed.

14.Accordingly, taking all matters into account, I fix a starting point of 9 years’ imprisonment which is slightly less than the term the tariff would dictate but I do so for his young age and the stage of his life that he will be incarcerated for a significant period, which I reduce by one third for his plea of guilty, therefore making a total sentence of 6 years’ imprisonment.  Accordingly, I sentence the defendant to 6 years’ imprisonment. 

Mr Hanish Melwaney, SPP of Department of Justice, for HKSAR

Mr Hung Hing Shek, Andy, instructed by Fu and Cheng, assigned by Director of Legal Aid, for the defendant