HKSAR v. Man Yuk Yung and Another

HCCC 291/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 291 OF 2014

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Transcript of the Audio Recording
of the Sentence in the above Case
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COURT: Defendants, you have both pleaded guilty to the 1st count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance.

You have both admitted that on 14 November 2013, at the Acesite Hotel at Soy Street, Mongkok, you unlawfully trafficked in 975.90 grammes of a solid containing 673.81 grammes of cocaine.

As for you, 2nd accused, you have pleaded guilty to the same offence in the 2nd count however, that charge relates to drugs of 193.75 grammes of solid containing 93.93 grammes of cocaine, at the parking space of No 62, Basement Floor Carpark, Choi Hung Estate, Ngau Chi Wan, Kowloon, also on the same date, 14 November 2013.

Both of you were discovered trafficking in dangerous drugs as a result of the Customs officers conducting an anti-dangerous drugs operation near to the Acesite Hotel in Mongkok on 13 November 2013. You were kept under observation from the evening of the 13th until you were arrested on 14 November at around lunchtime.

In brief, you were seen, before your arrest, to enter and leave the Acesite Hotel on a number of occasions. At about 12.30 pm on 14 November, 1st accused, you were seen carrying a white carrier bag and the 2nd accused, you were seen pulling a black nylon suitcase, also carrying a white carrier bag. 2nd accused, you left the hotel carrying the suitcase and carrier bag. 1st accused, you remained in the hotel at the 1st floor lobby area. 1st accused, you were seen to enter the washroom on the 1st floor of the hotel.

In the meantime, a Customs officer was stationed outside the hotel near the window of the washroom. At that time he saw some bags being thrown out of the window of the washroom. These bags landed on the ground in a rear alley behind the hotel. After inspection, they were found to be 49 packets of the drugs which are the subject matter of the 1st charge. 1st defendant, you were then intercepted in the washroom and taken down to where the drugs were found.

As for the 2nd accused, you were intercepted outside of the hotel with the suitcase and the carrier bag. There were a number of items in the suitcase which could have been used to manufacture drugs. In fact, upon examination of the saucepans, a bowl, electronic scale, a cutter, traces of cocaine were found on them, and in the carrier bag that, you accusedwere holding, was found to contain a baking powder box.

Upon search of you, 2nd accused, keys were found. One of those keys was for a private car parked at Choi Hung Estate. 2nd accused, you were escorted to the car parked there and inside of the glove compartment were found the drugs the subject matter of count 2 contained in 13 packets.

For the 1st charge, the street or retail value of the drugs there amounted to $1,077,393.60, and for the street value of both the drugs in the 1st and 2nd counts, that amounted to $1,291,293.60.

Defendants, your counsel, Miss Monica Chow and Mr James McGowan, respectively have mitigated for you both. You are both of clear record, both of fairly young age; now, D1, you are 23, and D2, 22. You had both worked on a construction site and it appears that you were both also recruited by a person to be the messenger or deliverer, courier, of these drugs. I accept that there are no aggravating factors to enhance the appropriate starting point in this case.

As I am confident you have both been advised, the Court of Appeal has laid down tariffs or guidelines for the appropriate sentence to be passed in relation to trafficking in these drugs cocaine. The relevant cases are the well-known cases of Lau Tak Ming and Abdallah.

Miss Chow has referred me to a number of Court of Appeal cases whereby the amounts are similar to those in the 1st count. She asks me to impose a similar starting point, one which is not over one of 20½ years for Charge 1.

Mr McGowan has recognised that his client has trafficked in slightly more drugs and asked me not to impose a starting point of over 21 years.

Both defendants, you are young men and will be facing a long term of imprisonment. I am sure that you have caused your families great distress in the commission of this very serious crime. Mr McGowan has indicated, in court, that you, the 2nd accused, apologise publicly to the members of your family for the distress you have caused them. It appears that you have committed this offence for the extra money or the quick money that you would have earned.

Your strongest mitigating factor is, of course, your plea of guilty and, in fact, that is your only mitigating factor. Defendants, I have taken into account the mitigation advanced by your counsel and in following the guidelines as stated in those cases, I sentence you to the following terms.

First of all, let me just deal with Count 1 which you both pleaded guilty to. Taking the amount of drugs involved, I would have taken a starting point of 20 years’ imprisonment had you been convicted after trial. Giving you full credit for your plea of guilty, that term shall be reduced to one of 13 years and 4 months’ imprisonment which, D1, you shall serve.

As for D2, you pleaded guilty to two charges and as to the sentence to be imposed upon you, I will look at the total amount of drugs involved in both charges. In both charges, the total amount of drugs is 767.74 grammes of cocaine. Given that amount of drugs, had you been convicted after trial, I would have taken a sentence of 20 years and 6 months’ imprisonment. So giving you the full discount of one-third, that would make a resulting sentence of 13 years and 8 months’ imprisonment.

I must sentence you for both charges individually. I have already sentenced you on Charge 1 to 13 years and 4 months. In respect of Charge 2, I would have taken a starting point there of 9 years’ imprisonment. Giving you full credit for your plea of guilty, that would be reduced to one of 6 years’ imprisonment.

Taking into account the principle of totality in the resulting sentence, 4 months of Charge 2 is to run consecutive to Charge 1, thereby making the total term one of 13 years and 8 months’ imprisonment.