HKSAR v. YIM CHUN PONG

HCCC 249/2023

[2024] HKCFI 183

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 249 OF 2023

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

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COURT: The defendant pleaded guilty in the Eastern Magistrates’ Court on 24 August 2023 to two charges of trafficking in dangerous drugs, and he was committed for sentence to the Court of First Instance.

He confirms his plea and his agreement to the Summary of Facts before me today.

The incidents which gave rise to the two charges took place on 29 September 2021:

(1)  The offence, the subject of the 1^st count, occurred when 18.6 grammes of a solid containing 13.52 grammes of ketamine and 24.87 grammes of a solid containing 20.09 grammes of cocaine were found on the defendant’s bag when he was intercepted.

(2)  The offence, the subject of the 2^nd count, related to drugs found in a hotel room in which the defendant was staying. These were quantities of two different types of drugs, namely, 306 grammes of a solid containing 241.1 grammes of ketamine and 97.2 grammes of a solid containing 82.5 grammes of cocaine.

The Facts

At around 2.32 pm, on 29 September 2021, in an anti-narcotic operation in the vicinity of San Tin, the defendant was seen by Customs officers appearing outside Wing Ping Tsuen Public Toilet and looking around nervously. At the time, the defendant was carrying a black eco-friendly bag in his left hand, a black handbag in his right hand. He was intercepted and upon search, his black eco-friendly bag was found to contain:

(1)  a total of 45 plastic bags containing a total of 18.6 grammes of a solid containing 13.52 grammes of ketamine; and

(2)  a total of 135 plastic bags containing a total of 24.87 grammes of a solid containing 20.09 grammes of cocaine.

Upon a body search, a mobile phone and cash of HK$3,680 were found on him. Under caution, the defendant said the cash belonged to him.

Upon further search, two white cards and one black card was found in the other black handbag. Under caution, the defendant said the white cards were for gaining access to Room 307 and the black card was for gaining access to Room 803, Pentahotel, Tuen Mun.

At around 3.07 pm on the same day, together with the defendant, the Customs officer entered Room 307, a hotel room, using one of the white cards. The drawer of a cabinet in Room 307 was found to contain:

(1)  a total of 121 plastic bags containing a total of 306 grammes of a solid containing 241.1 grammes of ketamine;

(2)  a total of 78 plastic bags containing a total of 97.2 grammes of a solid containing 82.5 grammes of cocaine;

(3)  a large quantity of resealable plastic bags;

(4)  two electronic scales;

(5)  two spatulas;

(6)  two weights.

Under caution, the defendant said only he had the key card for gaining access to Room 307 and no one else had the same.

In the afternoon of 12 September, that room was rented by the defendant for the period between 12 September 2021 and 11 October 2021 and he signed a lease for the rental. A key card was then issued to the defendant for access to the room.

The estimated street value of the two dangerous drugs seized was as follows: HK$178,857.60 for ketamine; and HK$123,901.05 for cocaine.

The defendant now admits and accepts that at all material times, he knowingly possessed all the dangerous drugs seized for the purpose of unlawfully trafficking in them.

The Defendant’s Background

The defendant is now 37 years old. He was unemployed before the present offence. The defendant said he was divorced in about 2013 and had a 15 years’ old daughter under the care and custody of his ex-wife.

The defendant has four previous similar convictions, two for possession of dangerous drugs and two for trafficking in dangerous drugs. His first conviction was in November 2007 for possession of dangerous drugs for which he was sentenced to 8 months’ imprisonment.

For trafficking in dangerous drugs, he appeared before the District Court in March 2016, and was sentenced to a term of 3 years. Later in July 2020, the defendant was convicted in the District Court for trafficking in dangerous drugs, whereupon he was sentenced to 38 months’ imprisonment. He was discharged from prison for that offence in mid-2020, about a year before the commission of the present offence.

His last conviction was 22 November 2021 for possession of dangerous drugs.

Sentencing Principles and Tariffs

Trafficking in dangerous drugs is a very serious offence. In sentencing, I shall follow the six-step approach enunciated in the case of HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.

The first step is to assess the gravity of the offence. There are two different types of drugs involved in this case, namely, ketamine and cocaine.

Both the prosecution and the defence have helpfully calculated the respective arithmetical starting points of the two charges for my reference, using the ‘absurdity test’, ‘conversion test’ and ‘ratio test’ as explained in HKSAR v Chan Yuk Leong CACC 318/2013 (unreported, 8 April 2014).

However, the facts of this case are similar to HKSAR v Wan Lau Mei [2014] 4 HKC 75, the case concerning two charges of drug trafficking, involving the same criminality. The Court of Appeal said at paragraphs 27 to 30 that when sentencing two trafficking offences:

“where different quantities of dangerous drugs are found in the accused’s possession on the same day but at different locations, ...the judge should regard the two offences as representing one occasion of possession of the total amount of drugs and impose sentences on both offences for that total, making the sentence concurrent with one another.

Such an approach more truly reflects the accused person’s culpability as the reality of the situation is that on the day of the charges the accused was in overall possession of the drugs found at the two locations. It is also an approach which ensures that the accused’s final sentence is not artificially inflated by separating out the drugs of the two charges as though the accused had been guilty of two quite separate offences and then imposing consecutive sentences.”

I am therefore of the view that it is more appropriate to adopt what was suggested by the Court of Appeal in Wan Lau Mei in this case when I deal with both charges.

The drugs involved in both charges are as follows: Cocaine in both charges add up to 102.59 grammes. For ketamine, 254.62 grammes.

Ketamine

The sentencing principle for trafficking ketamine is found in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1.

According to the sentencing guidelines, for the quantity of 254.62 grammes of ketamine, the defendant is in the band of 50 grammes and 300 grammes where the guidelines’ starting point for traffickers after trial, subject to any enhancement, is 6 to 9 years’ imprisonment.

Cocaine

Cocaine and heroin are equated for sentencing purposes and the tariffs as fixed for heroin in R v Lau Tak Ming [1990] 2 HKLRD 370, as modified by HKSAR v Abdallah [2009] 2 HKLRD 437 apply to cocaine.

According to the sentencing guidelines, for the quantity of 102.59 grammes of cocaine, the defendant is in the band of 50 grammes and 200 grammes where the starting point for traffickers after trial, subject to any enhancement, is 8 to 12 years’ imprisonment.

The second step is to assess the defendant’s role and culpability based upon the evidence.

As was held in Herry Jane Yusuph at paragraph 59:

“The guideline 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.”

Consequently, it would not be possible to apply properly the guidelines until the court takes a view of the role and culpability of the defendant.

The third step is identify where in the relevant band the defendant comes, bearing in mind it might be necessary to go outside that band, whether above or below, given the circumstances of the offence and the role of the defendant.

The assessment made in the second step is relevant in determining where within the band or outside the band the defendant comes. The Court of Appeal reaffirmed that the bands were for the least culpable of drug traffickers, and courier or storekeeper falls into this category.

The facts of this case revealed that packaging tools were found in the hotel room and only the defendant had access to that room. Cash of $3,680 was found on the defendant.

While I am suspicious as to the defendant’s role as to whether he is more than a mere courier or storekeeper, the evidence is by no means certain as to what his exact role is. I will sentence the defendant in accordance with the guidelines as if the defendant is a storekeeper.

Overall Starting Point

In determining the proper overall starting point, I have reminded myself of the sentencing principle for trafficking in cocktail drugs. There are three means of cross-checking the appropriateness of the overall starting point in case of a trafficking involving different types of drugs. See HKSAR v Yip Wai Yin [2004] 3 HKC 367; Chan Yuk Leong and HKSAR v Islam Majharul [2020] 3 HKLRD 146. I set out different starting points in a table form, which both counsel have accepted as correctly calculated.

In mitigation, Mr Chan submits that as a matter of fairness and common sense, the combined approach should be adopted. To achieve a reasonable and realistic sentence, I will adopt the combined approach. While the total amount of cocaine represented only 28.72 per cent of the total drugs, cocaine was the more or most serious drug in terms of potency. I will use cocaine as the base drug to calculate the starting point.

Using ‘cocaine’ as the base drug and the starting point for 102.59 grammes of cocaine, as I have said, is 9 years and 4 months’ imprisonment, I now have to decide what upward adjustment should I make for the remaining 254.62 grammes of ketamine.

I examine the overall starting point by cross-checking it against all three tests. The absurdity test is 14 years 4 months. Conversion test is 11 years 1 month when using the sentencing guidelines for cocaine as the base. The ratio test is 10 years and 10 months’ imprisonment.

Having conducted these three tests, I will adopt a starting point by making an upward adjustment of the 9 years 4 months to one of 11 years for the combined quantity of both Charge 1 and Charge 2. As such, the two charges should be served concurrently.

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

First, two different kinds of drugs were involved in the present case, which is a factor recognised by the court as deserving of an enhanced sentence, even though separately packed and not in a prepared mixture, because in such a situation the trafficker is able to cater to a far wider market than the trafficker in only one kind of drug (see Chan Yuk Leong at paragraphs 23 to 25).

As for this aggravating factor, Mr Chan urges me not to enhance the starting point because there is no expert evidence suggesting the combination of ketamine and cocaine poses a greater harm to drug abusers.

However, it is now established that the presence of more than one type of drug in a drug trafficking offence is an aggravating factor because in such a situation, the trafficker is able to cater to a far wider market (see Islam Majharul at paragraph 27(4)).

According to the Summary of Facts, the defendant was on a mission from the place where he was staying to traffic in different kinds of dangerous drugs. It may be recalled that in the leading case of Hii Siew Cheng, in which the court laid down guidelines for trafficking in ketamine and ecstasy, having first received expert evidence about the prevalence and effects of each drug, the court voiced its conclusion at paragraph 85 that “the most important features of the evidence are that both drugs are...targeted at the young, particularly those under twenty-one”. I note that in Wan Lau Mei, the Court of Appeal considered a 6-month enhancement for this factor appropriate on its facts.

Taking into account the principle of totality, I will add an additional sentence of 3 months for this aggravating factor which makes a total of 11 years and 3 months.

Lastly, there is the issue of the defendant’s criminal record. I am alive to the similar previous convictions of the defendant and the fact that he reoffended just over a year after his last discharge from prison in or about August 2020. However, similar to the situation of the appellant in Wan Lau Mei, there is evidence before me that confirms the defendant’s claim that he had a drug abuse problem and supports his assertion that he was trafficking in order to feed his addiction. In light of the personal circumstances of the defendant, I would not treat his previous convictions as an aggravating factor requiring a sentence containing an additional element of deterrence.

Fifth, I am required to have regard to all mitigating factors. I have been told about the defendant’s background, and what he has said in his letter as to the reasons why he committed the present offence. However, as the Court of Appeal made clear in Herry Jane Yusuph, in cases of this nature, personal circumstances will count for little unless they are exceptional.

The only mitigating factor in the defendant’s case is, as rightly pointed out by Mr Chan, his plea of guilty at the earliest available opportunity. I will give the full one-third discount to the defendant.

I reduce the overall starting point to a term of 90 months, that is, 7 years and 6 months’ imprisonment.

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

I am of the view that the ultimate sentence of 7 years 6 months’ imprisonment is appropriate and is not out of proportion to the defendant’s overall criminality.

I therefore impose sentence of 7 years 6 months’ imprisonment on both Counts 1 and 2, and I further order the sentence for Count 2 shall be served concurrently with the sentence for Count 1.

This final sentence I would impose on the defendant is one of 7 years 6 months’ imprisonment.