HKSAR v. Liu Yuk Ming and Another

HCCC 407/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 407 OF 2014

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Transcript of the Audio Recording
of the Sentence in the above Case
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COURT: The 1st defendant has pleaded guilty to the 1st count of trafficking in a dangerous drug, namely 63.98 grammes of a solid containing 58.34 grammes of cocaine. The 2nd defendant has pleaded guilty to the 2nd count of trafficking in a dangerous drug, namely 0.42 grammes of a solid containing 0.39 grammes of cocaine, 120 grammes of a powder containing 0.39 grammes cocaine, and 166 foil packs containing a total of 3,710 grammes of mixture containing 21.31 grammes of methamphetamine, 86.93 grammes of ketamine and 3.55 grammes of nimetazepam.

On 19 February last year, the 1st and 2nd defendants were seen to alight from a vehicle, a private car SA 6340, outside a place called Indi Home at Yeung Uk Road, Tsuen Wan.

The 1st defendant was intercepted subsequently at about 6.30 pm in the lift lobby of the 28th floor. Found from the defendant’s jacket were the bags of drugs, which is the subject matter of Count 1. And also found on the 1st defendant was the car key to SA 6340. And when the police searched the car, a bunch of keys was found in the car, and one of the keys was able to open the door to flat 2915 of Indi Home.

Under caution, the defendant admitted that the cocaine, which was found on him, was to be delivered to someone by him, and he agreed to take the police to flat 2915 for a search.

Meanwhile, the 2nd defendant was seen coming out of flat 2195 of Indi Home at around 8 pm. He was arrested.

Police Officers then took the 1st and 2nd defendants into flat 2195 and searched the premises.

Inside the premises, the drugs which is the subject matter of the 2nd count were found. Also found in the premises was a weighing scale. Inside a drawer in a bedroom was found an electronic scale. And also drugs were found inside the locked drawer of a wardrobe. Also found were some unused transparent re‑sealable plastic bags, and found the locked drawer inside the bedroom was opened by means of a set of keys which were found on the 2nd defendant.

In the kitchen of the flat a batch of cooking utensils contained some white powdery substance which were later found to contain dangerous drugs. And 166 foil packs of “U‑loveit” packages, purporting to contain instant milk powder, was found on the floor near the wardrobe with the locked drawer in the bedroom. And these foil packs were subsequently examined by the Government Chemist and found to contain a total of 3.71 kilogrammes of a mixture containing 21.31 grammes of methamphetamine, 86.91 grammes of ketamine and 3.55 grammes of nimetazepam, the subject matter of Count 2.

Now as far as the accused’s background is concerned, in relation to the 1st defendant he is aged 37, born in Hong Kong, he is single and living alone Sham Shui Po, Kowloon at the time of this arrest. He has a criminal record dating from 1996, and has been brought to court on some 10 different occasions in the past. He has three previous charges of trafficking in dangerous drugs: two in 2005 for which he received a total of 6 years 10 months’ imprisonment, and one in 2010 where he received 4 years’ imprisonment.

The 2nd accused is aged 52 and was a taxi driver at the time of his arrest. He is married with a teenage son. He has previous convictions dating from 1984, and amongst them of relevance to this court is the last conviction in 2001 when he was sentenced to 3 years’ imprisonment for trafficking in a dangerous drug.

In relation to the 1st defendant, Mr Fu has pleaded in mitigation that the defendant had decided at an early stage - since the pre-trial review, in fact - to admit to the drugs found on his person but not those found in the premises, which is an indication of his remorse. I fully accept that.

As was pointed out correctly by Mr Fu, the case of Pedro Neil Rojas had indicated that for sentencing in cocaine, the court should follow the guidelines laid down in Lau Tak Ming, and Lau Tak Ming guidelines stipulated that for trafficking in heroin of between 50 to 200 grammes, the sentence should be in the range of 8 to 12 years.

In this case, the amount of drugs is 58.7 grammes, so I will take a starting point of 8 years. So giving him the full one‑third discount to recognise his plea and remorse, the 1st defendant is therefore sentenced to a term of 5 years and 4 months’ imprisonment.

The 1st defendant may sit down.

The 2nd defendant, his count, Mr Leung, urges in mitigation also the fact that the defendant had pleaded guilty, which is a sign of his remorse, and saving the court’s time.

Mr Leung also pointed out that the defendant was the sole breadwinner of his family and was tempted by money in agreeing to help the drug traffickers in packaging the dangerous drugs. But, of course, Mr Leung correctly recognised the fact that the only real mitigation in this case is the fact that the 2nd defendant has pleaded guilty.

In the case of this 2nd defendant, the count contains a cocktail of drugs, and the courts have said that it is up to the individual judges whether to do an individual approach or a combined approach in relation to sentencing.

I have considered the matter, and I consider that the combined approach would be more fair to the 2nd defendant in his case.

As for the amount of the individual drugs, as Mr Leung pointed out the cocaine in this case the amount is not great and the amount of 21.31 grammes of methamphetamine would appear to be the greater of the two.

Considering the case of Ching Kwok Hung where it was suggested as a guideline that for trafficking in 10 to 70 grammes of methamphetamine would merit a sentence of 7 to 10 years, I consider that in this case there was 21.31 grammes of methamphetamine so I would take a starting point of 7½ years’ imprisonment.

Next, I consider the amount of cocaine in this charge is 4.39 grammes of cocaine which would merit a sentence of about 3 years, according to the Lau Tak Ming guidelines, and that would be equivalent to about one gram of methamphetamine.

The next lot is the ketamine and the nimetazepam.

Now, the nimetazepam is a drug which, in the case of Wong King Kau [2010] 4 HKC 443, the Court of Appeal recognised that nimetazepam, commonly known as “‘No. 5 or Wong Fei Hung’” was as dangerous as ketamine or ecstasy. And, therefore, the Court of Appeal had said that the sentencing guidelines regarding ketamine and ecstasy should apply to nimetazepam as well.

The ketamine in this case is 86.93 grammes. The nimetazepam is 3.55 grammes. So added together it will give us 90.48 grammes. So following the guidelines for ketamine in the case of Secretary for Justice v Hii Siew Cheng [2008] 3 HKFC 323, it was suggested that for trafficking of between 50 to 300 grammes of ketamine that would merit a sentence of 6 to 9 years’ imprisonment.

In this case, the amount of 19.48 grammes I consider a reasonable sentence as a starting point after trial would be 6½ years’ imprisonment. And converting that to methamphetamine would give us about 9 grammes of methamphetamine hydrochloride.

So adding the methamphetamine, cocaine, ketamine and nimetazepam after conversion to methamphetamine, the total amount of methamphetamine would give us about 31.31 grammes. So following the guideline in Ching Kwok Hung, I consider that an overall starting point would be one of 8 years’ imprisonment. Giving the 2nd defendant also his full one‑third discount for his plea, he is sentenced, therefore, to 5 years and 4 months’ imprisonment.