HKSAR v. YIP KA-MAN AND ANOTHER

[2018] HKCFI 2597

HCCC 126/2018

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 126 OF 2018

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

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COURT:

D1, Yip Ka-man, and originally D2, Zango Michel Meneses Afonso, were jointly charged with one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134. They both pleaded not guilty. D1 was found guilty after trial by the jury whereas D2 was found not guilty.

The evidence shows that on 5 August 2017, at around 1.38 am, two plainclothes police officers were on anti‑crime patrol in Tsim Sha Tsui when the car driven by D1 was seen stopping outside the post office at No. 10 Middle Road. D2 was seen walking towards the car and got inside. The police later located an object containing suspected dangerous drug inside the car. The suspected dangerous drug was later confirmed to be 999 grammes of a solid containing 816 grammes of cocaine with a street value of HK$900,000.

D1 was born on 12 November 1976. So he will be 42 in a few days’ time. He is married and has a 2-year-old son, studied up to Form 1 and worked as a transportation worker with a monthly income of $15,000.

D1 has a rather long criminal history. He was first convicted for possession of dangerous drug in 1993 when he was 17. He was fined for that offence. Then there came a string of eight convictions of possession of dangerous drug between 1993 and 2001, for which he was sentenced to be put on probation on four occasions, he was given a suspended sentence on one occasion and was sent to a drug addiction treatment centre for the balance. Then came 2005 when he was convicted of three counts of trafficking in a dangerous drug and was sent to prison. In 2009, he was again sent to gaol for trafficking in dangerous drug. The same happened in 2012. His last conviction before today happened in 2014 when he was convicted of wounding or inflicting grievous bodily harm and was sent to gaol.

In mitigation, Mr Clement Lau, counsel for the 1st defendant, admitted the antecedent statement and the criminal record. Mr Lau also informed the court that he was aware of the guidelines for trafficking in such an amount of cocaine. He pointed out that the last time D1 was convicted of trafficking of dangerous drug was back in 2012. He asked this court to be lenient to the defendant.

Trafficking in a dangerous drug is a serious offence. On conviction on indictment, a person is liable to a fine of $5 million and to life imprisonment. The total quantity involved here is 816 grammes of cocaine. According to the sentence guideline set down in the case of HKSAR v Abdallah, trafficking between 600 and 1,200 grammes of cocaine, the appropriate starting point is between 20 to 23 years.

Bearing in mind that the starting point is for someone with a clear record, I will have to consider what is the appropriate starting point for the defendant who has a very bad criminal record. I would say that for a person with a clear record, I would have adopted 21 years as the starting point. I appreciate that the 1st defendant has already served the sentence for his previous offences, but I am still of the view that he is not entitled to have the starting point of 21 years. The defendant must understand that he cannot keep on offending because D1 has clearly shown to me that he is a repeated offender, despite having been sent to gaol many times before.

I will have the 21 years’ starting point enhanced to one of 22 years. I add one year on. The defendant has pleaded not guilty. So he is not entitled to the usual discount given to one who has pleaded guilty. So for the offence of trafficking in a dangerous drug, the defendant is sentenced to 22 years’ imprisonment.