HKSAR v. YIP CHI KIT

HCCC 401/2023

[2025] HKCFI 351

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 401 OF 2023

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REASONS FOR SENTENCE

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1.  Defendant faces two counts of “Trafficking in a dangerous drug” (Charges 1 & 2)  and one count of “Obstructing police officers in the due execution of their duty” (Charges 3). He pleaded guilty in the Eastern Magistrates’ Court on 27 Nov 2023 and was committed to High Court for sentence.

2.  This morning, he appeared before me for mitigation and sentence, having confirmed his plea to those charges and the admission to the summary of facts.  

Facts

3.  On 4 August 2021, the police conducted an anti-narcotics operation targeting a squatter hut situated at coordinate 831424N, 817980E, New Territories (“the Hut”).  By around 5:12 pm, the Defendant and one Pang Man-fung walked out of the Hut and walked towards a car park in Tan Kwai Tsuen, Tan Kwai Tsuen Road, Yuen Long, New Territories.  When they later boarded a vehicle in the carpark, three plainclothes police officers including Police Constable 13153 (“Officer Yip”), Senior Police Constable 34608 and Police Constable 13181 (“Officer So”)  approached the vehicle and revealed their identities.  They intercepted the defendant and Pang for investigation but the defendant, who sat on the driver seat, ignored them and sped away.  The officers chased the vehicle to a dead end of a road and demanded the Defendant to alight for enquiry but the Defendant tried to reverse the vehicle.  Officer Yip then smashed the window next to the driver seat, opened the door and switched off the engine of the vehicle.  Officers Yip and So pulled the Defendant out of the car but he continued to struggle until he was eventually subdued on the ground by the two officers.

4.  Search of a shoulder bag (Exh. 63)  carried by the Defendant found a plastic bag (Exh. 24)  containing six tin foil packets, which were tested to contain a total of 25.84 g herbal cannabis (Exh.1), three key for opening the doors of the Hut (Exh. 64 and 65), and two mobile phones with sim cards.  (Exh. 66 to 70)

5.  Under caution for drug trafficking, the Defendant said the packs of cannabis were samples to be delivered to his customers.

6.  The Defendant was subsequently taken to the Hut for a search and the police further seized, inter alia:-

(a)  Inside three plastic barrels (Exh. 37 to 39), a total of 48,067 g herbal cannabis in some plastic bags and packets (Exh. 14 to 23);

(b)  Inside two plastic boxes (Exh. 35 and 36), a total of 12,431 g herbal cannabis in some plastic bags (Exh. 12 and 13);

(c)  Plastic bags (Exh. 25 to 34)  containing 453 tin foil packets containing a total of 1,476.92 g herbal cannabis (Exh. 2 to 11);

(d)  Carton boxes and plastic bag containing wads of empty tin foil packets of different colours (Exh. 40 to 45, 49 and 50), including some of the same style as those found inside the Defendant’s shoulder bag (i.e. Exh. 63);

(e)  Two impulse sealers (Exh. 46 and 47);

(f)  A digital scale (Exh. 48); and

(g)  Miscellaneous items including toothbrushes, toothpaste, a shaver, an ash tray, cigarette butts, a towel and some clothes (Exh. 51 to 61).

7.  A total of 61,974.92 grammes of herbal cannabis was seized from the Hut.

8.  Upon further caution, the Defendant admitted that he had been told by his boss to repack the large packs of cannabis into smaller packs, and he would receive HK$10,000 for repacking every 5 kilogrammes of cannabis.

9.  In total, 62,000.76 grammes of herbal cannabis was seized in this case and the estimated street value was HK$11,718,144.

10.  The Defendant was further arrested for obstructing the police.  Under caution, the Defendant said he fled because he had cannabis with him.

11.  In a subsequent video-recorded interview, Defendant said that in August 2021, he accepted and followed Fai Gor’s instructions to visit the Hut and to deal with the cannabis.  Defendant said he lived in the Hut and the daily personal items found belonged to him.  

Defendant’s background and mitigation

12.  Defendant is now 36 years old.  According to the antecedent statement, he was born and educated in Hong Kong with Form 3 level.  He had worked as a salesman, a driver and a logistic worker before the arrest.  He is not married but he has 2 sons (aged 10 and 5)  and one daughter (aged 3)  with his girlfriend.  He lived together with his parents (both in their 60’s)  in a public housing estate in Tuen Mun.  

13.  In the past, he appeared in court for no less than 5 occasions from 2002 to 2018 involving 7 criminal records of which 2 was related to possession of dangerous drugs and one was related to Trafficking in a dangerous drug for which he was sentenced to 5 ½ years’ imprisonment in the High Court.  He was released from prison in February 2018.

14.  Mr. Roy Lau, counsel for the Defendant urged the court not to increase the sentence on account of defendant’s past criminal records.

15.  In relation to the first two trafficking charges, Mr. Lau submits that the recent case of HKSAR v Nguyen Thang Loi [2023] 1 HKLRD 1329 which laid down new sentencing guidelines in cannabis should not apply in the present case as the these guidelines were set after the commission of the offence on 4 August 2021. Mr. Lau submits that under the new guidelines, the starting point for trafficking in 62kg of cannabis resin is around 105 months.  He cites HKSAR v Wong Kin Hung [2023] HKCFI 1907 which involves 109.45 kilogrammes of herbal cannabis and is also committed before the new sentencing guideline is applied.  Douglas Yau DHCJ (as he then was)  finally imposed a sentence of 9 years’ imprisonment which is 22% below the new guidelines.  Mr. Lau urges me to consider applying a similar discount of 25% and reduces the starting point for 62 kilogrammes of herbal cannabis to around 78 months to 79 months’ imprisonment.

16.  Finally, in respect of Charge 3, Mr. Lau submitted that the charge is less serious than assaulting police or resisting arrest.  He stressed that no police officer was injured and a sentence of around three months is appropriate.

Consideration of sentence

17.  In sentencing, I have taken into account the facts of the case, the background and the mitigations put forward as well as the relevant authorities submitted by both the prosecution and defence.

The first step – gravity of the offence

18.  In relation to the two trafficking charges, I shall follow the six-steps approach as mentioned in case of HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.

19.  The first step is to assess the gravity of the offence with reference to the type and quantity of the drug involved. 

20.  The defendant here was involved in two trafficking charges, Charges 1 and 2.  In sentencing these two charges, I consider the trafficking offences underlying these two charges arose from the same incident and it is only fair that I will treat the seizures of the drugs in the two charges as the same lot and I will therefore take the aggregated total amount of drugs into account when fixing the starting point according to HKSAR v Chong Cho Kit, CACC 363/2005 (unreported, 12 July 2006). 

21.  The present case involves a total of 62,000.76 grammes of herbal cannabis. 

22.  As submitted by Mr. Lau and also agreed by the prosecution, the appropriate sentencing guideline is the one set down in R v Tuen Shui Ming and Another, CAAR 12/1994.  The new, more recent, guidelines in Nguyen Thang Loi are not applicable because the defendant committed the offences in August 2021, before the new guideline was set down. 

23.  According to Tuen Shui Ming, the suggested tariff for trafficking over 9,000 grammes of cannabis resin is 4 years and upwards.  There is no guideline for amounts of over 9,000 grammes.  It was also stated in Tuen Shui Ming that a discount could be given to persons trafficking in herbal cannabis, which was deemed less potent compared to cannabis resin at the time, unless the amounts of herbal cannabis involved are very large.  In my judgment, there is no doubt that 62 kilogrammes of herbal cannabis involved in the present case are indeed of a very large amount, and therefore no such discount will be given.

24.  As said, Mr. Lau referred me to the case of Wong Kin Hung, in which the Tuen Shui Ming guideline was also applied because the offence in that case was committed before the new guideline was set down.  There, Douglas Yau DHCJ (as he then was)  was of the view that a starting point of 9 years was appropriate for trafficking 109,355 grammes of herbal cannabis.  After arriving at this starting point, he noted, in my view, somewhat only in passing, that the 9-year starting point he adopted was approximately 22% lower when compared to the notional starting point of 11 years that would have applied under the new guideline for such a quantity. 

25.  Based on this comparison, Mr. Lau submits that the 62,000.76 grammes of herbal cannabis involved in the present case would have attracted a notional starting point of 105 months had the new guideline been applied.  He then submits that I should apply “a similar discount of 25%” as in Wong Kin Hung and adopt a starting point of around 78-79 months for the present offences.

26.  With respect, Wong Kin Hung was just a sentencing exercise adopted by an individual sentencer in High Court and what is more, it was no more than an example for consideration fit for the facts of that particular case and certainly the sentencing judge is not trying to establish a sort of “converter” or established a ratio between the sentences imposed under the two sets of guidelines.  Rather, the sentencing judge was simply making a comparison or an observation, as he stated in §32 of his judgment.  In fact, as the learned judge observed, the new guideline mainly extended the sentencing bands in Tuen Shui Ming to cover larger quantities of cannabis.  The pre-existing bands for quantities from under 2,000 grammes to over 6,000 grammes remain unchanged in the new guideline, with the “over 9,000 grammes” band capped at 66 months but starting at 48 months (4 years), which is the same as under the Tuen Shui Ming guideline.  The bands for quantities from over 15,000 grammes to over 90,000 grammes are also newly set in the new guideline.

27.  As such, I consider that Wong Kin Hung is just a sentencing case and is of course not binding on me and cannot assist me for the present purposes.  In any event, Wong Kin Hung concerns a much greater quantity of herbal cannabis (109,355 grammes)  than the quantity in the present case (62,000.76 grammes).  

28.  Before arriving at the starting point of the sentence in the present case, I have referred myself to cases involving comparably large amounts of herbal cannabis in order to ensure consistency in sentencing.  In HKSAR v Wong Kwok-kin and Anor, HCCC 362/2023, the defendant there pleaded guilty to trafficking in a total of 72,344.33 grammes of herbal cannabis, the sentencing judge was of the view that a starting point of 7 years and 6 months’ imprisonment appropriate.  In HKSAR v Wong Master Sutthichai [2022] HKCFI 3511, a starting point of 7 years for trafficking in 58,605 grammes of herbal cannabis was considered appropriate.  In HKSAR v Nguyen Trong Thigh and Another, HCCC 92/1998, a starting point of 7 years for trafficking in a total of 60,600 grammes of herbal cannabis was considered appropriate.  

29.  All these cases, similar to the present case, are post-Tuen Shui Ming and pre-Nguyen Thang Loi.  I must however emphasize that for sentencing purposes, each case depends on its own facts.  As the Court of Appeal made clear in Herry Jane Yusuph at §46, indiscriminate comparisons between sentences by different courts for similar offenses are warned against.  This is particularly relevant where the quantities of herbal cannabis in these cases, as well as in the present case, far exceed the “over 9,000 grams” band under the Tuen Shui Ming guideline.

30.  Considering the above and applying the Tuen Shui Ming guideline in the present case, I consider a starting point of 87 months or 7 years and 3 months of imprisonment appropriate for the 62,000.76 grammes of herbal cannabis here.

The second and third steps – role and culpability & the relevant band defendant comes

31.  The second step is to assess the role and culpability of the Defendant based upon the evidence before the court.  The third step is to identify where in the relevant band of the guidelines the Defendant comes, bearing in mind that it may, in appropriate circumstances, be necessary to go outside that band (whether above or below), given the particular circumstances of the commission of the offence and the role of the Defendant. 

32.  The assessment made in the second step is relevant in determining where the Defendant falls within or outside the band.

33.  The Court of Appeal reaffirmed that the bands are for the least culpable of drug traffickers.  As was held in the Herry Jane Yusuph at §59, and I quote,

“The guidelines for trafficking in dangerous drugs are based upon the courier or storekeeper; that is the person who is delivering, distributing or conveying the drugs in question for a dealer; or storing the consignment of drugs on behalf of himself or someone else.”

34.  Mr. Lau submitted that the Defendant’s role in the present case was similar to that of a storekeeper and that no enhancement is required. 

35.  However, according to the Summary of Facts, at §9, the Defendant admitted under caution that he followed the instructions of his boss “Fai Gor” to purchase impulse sealers and digital scales, and to use them to repack various quantities of cannabis into different tin foil packets to facilitate the distribution of the cannabis.  The Summary of Facts also stated, at §§2 and 4, that upon his arrest at the scene, officers found on him, among other items, six tin foil packets containing herbal cannabis, as well as keys to the premises storing the rest of herbal cannabis and the tools for packaging and disseminating the dangerous drugs. 

36.  The defendant has admitted the Summary of Facts when he pleaded guilty to the charges.  In my judgment, these are all cogent evidence of the Defendant’s involvement in the packaging and dissemination of the herbal cannabis in the present case. 

37.  The Court of Appeal has repeatedly stressed that the defendant’s involvement in the packaging and dissemination of dangerous drugs heightens his culpability and aggravates his offence.  In HKSAR v Islam Azharul [2020] 1 HKLRD 644, Zervos JA considered an enhancement of 6 months' imprisonment appropriate for a defendant who was involved in the packaging and dissemination of dangerous drugs.  He rented a room to store the dangerous drugs involved.  He was in possession of over 90 bags and packets of drug at the time of his arrest, and was found with a knife bearing traces of the drugs, as well as an electronic scale. 

38.  Considering the facts of the present case, I consider a similar enhancement of 6 months’ imprisonment appropriate to reflect the heightened culpability of the Defendant. The sentence would therefore be increased to 93 months or 7 years and 9 months’ imprisonment.

The fourth step – aggravating factors

39.  The fourth step requires me to consider whether there are any aggravating factors which may require me to enhance the starting point.

40.  According to the Defendant’s criminal record, he has five previous convictions, two of which were for possession of dangerous drugs in 2010, and one for trafficking in dangerous drugs in 2015.  He was sentenced to 5 years and 6 months in 2015 for the trafficking conviction.  He was last discharged from prison in February 2018. 

41.  While I am aware that the defendant had three previous drug-related convictions, I am mindful that only one of them pertained to trafficking in dangerous drugs, and that some three years have elapsed since he was released from prison before he committed the present offence.  I would therefore give the defendant a chance and not enhance the Defendant’s sentence further under this step.  

42.  The fifth step is to consider all mitigating factors.  As correctly submitted by Mr. Lau, the strongest mitigating factor in the present case is the Defendant’s timely and early plea at the committal stage.  Apart from that, Mr. Lau submitted that the Defendant has a fiancée and three young children.  He committed the offences due to financial pressure.  He is now truly remorseful and undertakes to stay away from crimes in the future.

The fifth step – mitigating factors

43.  It is trite that the Court can never accept economic reason for committing crimes.  Further, as the Court of Appeal made clear in Herry Jane Yusuph at §73, in cases of trafficking in dangerous drugs, personal and family circumstances will count for little unless they are exceptional.  There is nothing in the paper to demonstrate that there is anything exceptional warranting further mitigation. Therefore, I will not reduce the sentence further, apart from the one-third discount given for the Defendant’s timely and early plea.  After applying such discount, the Defendant’s sentence is reduced from 93 months to 62 months or 5 years and 2 months.

44.  The sixth and final step is to stand back and look at the overall sentence passed in order to ensure that it is a fair, just and balanced sentence in all the circumstances of the offence and the offender. 

45.  In my judgment, the final sentence of 5 years and 2 months’ imprisonment on the two trafficking charges is, of course, harsh for the Defendant.  However, in light of the above and the fact that the offences he committed are serious, I have no doubt that the sentence is fair, just, and balanced in the circumstances.

46.  Finally, involving the obstructing police charge, while it is true that the charge is arguably less serious than assaulting police or resisting arrest, the facts remains that it was a deliberate attempt by the Defendant to flee by driving forward and reversing backward in high speed regardless of the warnings and the presence of the officers surrounding the vehicle.  It was only fortunate that no one was injured during the escape and both Officer Yip and Officer So should receive commendations for their brave and decisive actions to intercept the Defendant.

47.  I consider a starting point of 9 month’s imprisonment is appropriate for this charge which will be reduced to 6 months’ imprisonment on account of his plea.

Totality

48.  Based on the above reasons, the Defendant is sentenced in the followings:

(a)  5 years and 2 months on both Charge 1 and 2 and the sentences on both charges to run concurrently;

(b)  6 months’ imprisonment on Charge 3 and the sentence to run consecutively to the sentences on Charge 1 and 2.

49.  The total sentence is therefore 5 years’ and 8 months’ imprisonment.