HKSAR v. YIP CHUNG WING

DCCC 370/2021

[2021] HKDC 1641

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 370 OF 2021

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REASONS FOR SENTENCE

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1.  D1 is convicted on his own plea and agreement to summary of facts to a charge of possession of a dangerous drug, contrary to section 8(1)(a)  and (2)  of the Dangerous Drugs Ordinance, Cap 134 (1^st charge); 2 charges of trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134 (2^nd and 4^th charge)  and a charge of trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134 (3^rd charge).

Facts

1^st and 2^nd Charge

2.  At around 2110 hours on 8 October 2020, police officers intercepted a taxi with D1 on board.  Upon search, a folded HK$20 banknote containing traces of ketamine was found in the left front pocket of D1’s trousers (1^st charge).  Cash of HK$15,243.5 and 2 mobile phones were found on D1.  Under caution, D1 admitted that he had the drugs for his own consumption.

3.  The taxi was further searched and a total of 17 resealable plastic bags containing 5.96 grammes of a solid containing 5.13 grammes of ketamine was found at the handle on the offside rear door and inside the shoebox placed behind the headrest of the nearside rear seat. (2^nd charge)

4.  Thereafter, the police declared arrest for possession of dangerous drugs for the 17 resealable transparent plastic bags of ketamine and, under caution, D1 stated that the drugs were for his own consumption.

5.  In a subsequent video recorded interview, D1 admitted that all the ketamine belonged to him. 

6.  The total estimated street value of the 17 packets of ketamine was HK$3,500.

3^rd and 4^th Charge

7.  On 28 October 2020 at around 0055 hours, police officer noticed D1 getting out of a stationary taxi.  D1 returned to the taxi 5 minutes later and again got on the taxi from the offside rear door.  He was seen chatting with another defendant, D2, who was sitting in the nearside rear seat.

8.  Police intercepted the taxi and asked D1 and D2 to step out of the taxi. D1 then was found holding 3 mobile phones and a green bag was on his lap. 

9.  Upon search, the following items were found in the said green bag, namely:-

(1)  a wallet containing cash of HK$4,470;

(2)  a plastic bag containing cash of HK$60.5;

(3)  a transparent resealable plastic bag containing 15 smaller transparent resealable plastic bags containing a total of 2.6 grammes of a solid containing 1.92 grammes of cocaine (E4);

(4)  a transparent resealable plastic bag containing 5 smaller transparent resealable plastic bags containing a total of 1.97 grammes of a solid containing 1.71 grammes of ketamine (E5); and

(5)  a tin which contained a transparent resealable plastic bag containing 9 smaller transparent resealable plastic bags containing a total of 1.56 grammes of a solid containing 1.38 grammes of cocaine (E6).

10.  Under caution, D1 said E4 to E6 were dangerous drugs “coke” and “perfume”, and he had just sold 5 packets of “coke”.

11.  In the meantime, D2 was found holding in his right hand a tissue wrapping 5 transparent resealable plastic bags containing a total of 0.86 gramme of a solid containing 0.7 gramme of cocaine (E7).  2 mobile phones and cash of HK$25,382.7 were found in the sling bag that D2 was carrying. 

12.  Under caution, D2 said that E7 was cocaine, which he had just bought from D1 at a price of HK$1,600 for self-consumption.

13.  The police later arrested D1 and, under caution, D1 said that he had just started to “work” and that he had just sold 5 packets of “coke” to D2 for HK$1,600 and that all the drugs belonged to him.

14.  D1 also told the police that cash HK$1,600 earned from D2 was in his right pocket of his pants.  The same was seized by the police from D1.

15.  Upon searching the taxi, the police found under the driver’s seat:-

(1)  a pink tin which contained 12 transparent resealable plastic bags containing a total of 2.08 grammes of a solid containing 1.69 grammes of cocaine (E8); and

(2)  a blue tin which contained 11 transparent resealable plastic bags containing a total of 4.4 grammes of a solid containing 3.78 grammes of ketamine (E9).

16.  Under caution, D1 said E8 and E9 were dangerous drugs “coke” and “perfume” and he had put them under the driver’s seat.

17.  Police also found a shoebox containing cash of HK$20,000 behind the nearside rear seat.  Under caution, D1 said the cash belonged to him.

18.  At the handle of the offside rear door, 2 transparent resealable plastic bags containing a total of 0.34 gramme of a solid containing 0.3 gramme of cocaine (E10)  and a transparent resealable plastic bag containing 0.38 gramme of a solid containing 0.33 gramme of ketamine (E11)  were found.

19.  Under caution, D1 said E10 and E11 were dangerous drugs and that he put them at the handle.

20.  Government Chemist subsequently confirmed the narcotic contents of E4 to E11.  The total quantity of dangerous drugs E4 to E6, E8 to E11 was 6.58 grammes of a solid containing 5.29 grammes of cocaine and 6.75 grammes of a solid containing 5.82 grammes of ketamine.  Total estimated street value of E4 to E11 was about HK$21,500.

Criminal record

21.  D1 has 7 previous convictions, all relating to dangerous drugs, of which 3 are trafficking in dangerous drugs and 4 are possession of dangerous drugs charges.  D1 was last convicted of possession of dangerous drugs on 3 January 2019, for which he was sentenced to 6 months’ imprisonment.

Mitigation

22.  D1 is 37 years old.  He was educated up to Form 2 level.  He used to work as a part-time warehouse worker and a part-time car washer.  He lives in a public housing unit with his mother, who raised D1 as a single parent.  His mother is now 64-year-old retiree and she suffers from sciatica and osteoporosis and has difficulty moving.  She also needs to regularly attend treatment or follow-up sessions for asthma, psychiatric problems and diabetes. As D1 is the only child, he is therefore the sole breadwinner of the family and the only person taking care of his mother.  As a result, they have also enlisted the help of a social worker to assist the day care of his mother.

23.  Defence counsel also handed to court a medical appointment slip of his mother and a mitigation letter written by D1.

24.  In relation for the 1^st charge, defence counsel asked this court to impose a sentence which would run totally concurrent with the sentence in the other charges, in light of the totality principle.

25.  As for 2^nd and 4^th charge, originally the defence counsel submitted that under 2^nd and 3^rd charge, a significant proportion of these drugs were for the own consumption of D1, but, on court’s indication that a Newton hearing has to be conducted, defence counsel for D1 withdrew the submission.

26.  Defence counsel submitted that D1 is a long-term ketamine user, first taking ketamine in year 2000, and that, except for the period when D1 was in a DATC and in the supervision period that followed, D1 has always been taking ketamine daily.

27.  Defence counsel also urged this court to give the D1 the one-third sentencing discount by reason of his guilty plea. 

28.  He has also made a submission concerning the appropriate sentencing starting point for 2^nd to 4^th charge.  In view of the amount of drugs in 4^th charge, which is relatively small, defence counsel urged this court not to impose a term of imprisonment made consecutive to the sentence in the other 2 charges, ie 2^nd and 3^rd charge.

Discussion

29.  Before sentence, the court has carefully considered all mitigation advanced on behalf of the D1 and the legal authorities in the area.

1^st Charge

30.  On conviction upon indictment, the maximum sentence is a fine of HK$1 million and imprisonment for 7 years for this offence. 

31.  The drug amount for this charge is very small. 

32.  D1 has 4 previous similar convictions, the last one being on 3 January 2019, for which he was sentenced to 6 months’ imprisonment.  He has, prior to that conviction, been to the DATC and had the benefit of a suspended sentence.

33.  In this case, D1 was also convicted of drug trafficking charges.  It is clear that the sentence in the other trafficking charges will well exceed 9 months’ imprisonment.  The appropriate sentence for this charge in the circumstances is therefore one of immediate custodial sentence.  The appropriate sentencing starting point for this charge is 6 months’ imprisonment.

34.  Defendant is clearly a persistent offender, but, on this occasion, the court is not going to enhance the sentencing starting point for this charge. 

35.  He has pleaded guilty and is therefore entitled to one-third sentencing discount.  Despite this, there is no other valid mitigating factor other than his guilty plea.  He is therefore sentenced to 4 months’ imprisonment for this charge.

2^nd Charge

36.  On conviction upon indictment of this charge, the maximum sentence is HK$5 million fine and to imprisonment for life.  Trafficking in a dangerous drug is a serious offence and in usual circumstances, it is well established that personal background and circumstances is not considered a valid mitigating factor.

37.  The drug in question is 5.13 grammes of ketamine.  The appropriate sentencing starting point, according to the case of Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, is 2 years 9 months and 27 days’ imprisonment, as opposed to the 3 years and 1 month’s imprisonment as calculated by defence counsel.

38.  D1 has 3 previous similar convictions in the past.  They are dated 19 years back and this court is not going to enhance the sentencing starting point on this charge by reason of his similar convictions.

39.  As said earlier, the court is not willing to accept defence counsel’s submission that substantial amount of these drugs is for D1’s own consumption. Therefore, apart from the one-third sentencing discount of which D1 is entitled to by reason of his guilty plea, no further discount would be given to D1 for this charge.

40.  Accordingly, for 2^nd charge, D1 is sentenced to 22 months and 18 days’ imprisonment.

3^rd Charge

41.  Drugs involved in this charge is 5.82 grammes of ketamine and 5.29 grammes of cocaine. 

42.  For trafficking in cocaine, following the authority of Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69, in adopting the guidelines in the case of R v Lau Tak Ming [1990] 2 HKLR 370, the appropriate sentencing starting point is 3 years and 7 months’ imprisonment, as suggested by defence counsel.

43.  For trafficking of ketamine, the appropriate sentencing starting point is 2 years 11 months and 15 days’ imprisonment, and not the 3 years and 3 months’ imprisonment as suggested by defence counsel.

44.  If all the 11.11 grammes of drugs trafficked is cocaine, the sentencing starting point is 5 years and 27 days’ imprisonment.  If all drugs is ketamine, the same is 4 years and 10 days’ imprisonment.

45.  The quantity of ketamine is slightly above that of cocaine under this charge.  This court finds it most appropriate to adopt the combined approach for the sentencing starting point under this charge.  The same arrives at 54 months’ imprisonment.

46.  D1 committed this offence whilst he was on bail for the offences committed on 8 October 2020, just 20 days before.  This is an aggravating factor, for which the sentencing starting point is enhanced by 3 months.

47.  Two types of dangerous drugs are involved.  This again constitutes another aggravating feature in sentencing, for which the sentencing starting point is further enhanced by 3 months, taking the total sentencing starting point to 60 months’ imprisonment.

48.  D1 has pleaded guilty and is therefore entitled to full one-third sentencing discount and therefore, for this charge, he is sentenced to 40 months’ imprisonment.

4^th Charge

49.  Drug involved is 0.76 gramme of cocaine and the sentencing starting point here is 12 months’ imprisonment. 

50.  Again, the offence was committed whilst D1 was on bail.  The same is enhanced by 3 months to 15 months’ imprisonment. 

51.  He is therefore sentenced to 10 months’ imprisonment after the one-third sentencing discount by reason of his guilty plea.

Totality

52.  Considering the totality principle, although D1 has been convicted of 2 drug trafficking charges for what he did on 28 October 2020, in substance, he trafficked 6.05 grammes of cocaine plus 5.82 grammes of ketamine.  Using the combined approach, had he been charged in a single charge, the sentencing starting point should be 4 years 7 months and 12 days’ imprisonment.

53.  By reason of the 2 aggravating factors aforesaid, the same is enhanced by 6 months each to 5 years 1 month and 12 days’ imprisonment.  The same is discounted by one-third to 3 years 4 months and 28 days’ imprisonment.

54.  Accordingly, 28 days in sentence of the 4^th charge is to run consecutive to the sentence in 3^rd charge, the rest of the sentence to run concurrent to the sentence in 3^rd charge.

55.  Now, coming to the sentences for offences committed by D1 on 8 October 2020, the sentence for 1^st charge is to run wholly concurrent to the sentence in 2^nd charge. 

56.  D1 committed the trafficking charge in the 2^nd charge 20 days apart from the 3^rd and the 4^th charge.  The quantity of ketamine in the 2^nd charge is not small; it is just slightly less than the quantity of ketamine in the 3^rd charge.  Clearly, culpability of D1 is enhanced by his commission of the 2^nd charge in addition to that of the 3^rd and the 4^th charge.

57.  Considering the overall culpability of D1, this court would order that 12 months of the sentence in the 2^nd charge is to run consecutive to the sentence for the 3^rd charge; the rest of the sentence in 2^nd charge is to run concurrent to the sentence in 3^rd charge. 

58.  D1 is therefore sentenced to a total of 4 years, 4 months and 28 days’ imprisonment for this case.