HKSAR v. YEUNG YUK MING

HCCC 85/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 85 OF 2013

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

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COURT: On 1 October last year, you were observed to be coming out of a flat, where it turned out you lived, by some police officers. You were intercepted. You were taken back into the flat, and when you were searched, nine small bags of ketamine, weighing in total 159.22 grammes, were found on you.

You were arrested and cautioned, and when you were cautioned, it is to your credit that you told the officers there was more ketamine under your bed. That was searched, and a further quantity of 159.74 grammes of ketamine was located.

You then obviously told the police that also belonged to you, and you told them, both at the time of your arrest and in a subsequent record of interview, that you had bought the ketamine because you wanted to sell it to raise quick money, and made reference to the fact that you have tuberculosis. You also told the police that you would consume some of the ketamine yourself.

Now, looking at the quantity of ketamine, the aggregate is 318.96 grammes, and that is the correct approach where drugs are found on an individual and then, almost immediately afterwards, in their residence a further quantity of drugs is found. The correct approach is to aggregate those two.

So taking 318 grammes puts you into the fifth bracket in Hii Siew Cheng, which ranges from 300 to 600 grammes, and prescribes a period of 9 to 12 years’ imprisonment.

I have already indicated to your counsel that although you have a criminal record which demonstrates you to be a singularly unsuccessful criminal, a lot of the matters are unrelated to drugs. What is apparent is that since 1993, when you would have been 20 years old, you have had some involvement with drugs. I say that because in 1993 you were sent to drug addiction treatment centre, and since then you have had four convictions for simple possession, plus one conviction in 2008 of trafficking in a dangerous drug.

I do not think that your drugs record has yet reached the stage where it would justify enhancing the starting point in this matter, but you must be on notice that if you reoffend after your release, or perhaps when you reoffend after your release, given your involvement with drugs over this period of time, you are likely to be facing an enhanced starting point.

Your counsel has raised with me the issue of the fact that you are a drug dependant, or were at the time of the offence a drug dependant, and has helpfully invited my attention to what the Court of Appeal said in Wong Suet Hau in regard to the approach to be adopted where a portion of the drugs that relate to the trafficking charge may have been intended for the accused’s own consumption.

Well, you indicated to the police that you had bought these drugs for the purpose of making quick money, and whilst I take the view that I would be entirely justified in simply sentencing you on the basis of the total amount of the drugs being for resale, I think the realism of the situation in your case is that you might well have dipped into the stock you had to a minor extent. For that reason I am going to regard you as having fallen into the fourth band, the band immediately below, which covers 50 to 300 grammes, which prescribes a period of 6 to 9 years’ imprisonment. Effectively, I am giving you credit for anything over 300 grammes as possibly being used by yourself.

So that suggests a starting point of 9 years’ imprisonment after trial. You have pleaded guilty timeously, which entitles you to a reduction of one-third, which reduces the sentences to 6 years’ imprisonment. There is nothing in the commission of these offences or in your personal background which entitles you to any further reduction in sentence.

You are to serve 6 years’ imprisonment.

(Proceedings from 10.07 am to 11.27 am not required)

COURT: My apologies for having to get you all back again.

MR CHEUNG: Not at all, my Lord.

COURT: But my eagle-eyed clerk noticed that of course I had passed one sentence of 6 years, when there were in fact two counts, and I am required to impose separate sentences.

So the calculation of the 6-year period then will be on the following basis: that I take a starting point of 7½ years for each of the two counts, which is within the tariff. Those each fall to be reduced by one-third, or 2½ years to 5 years, and then to give effect to the principle of totality, 1 year of the sentence on Count 2 will be served consecutively to that on Count 1.

So it remains 6 years, but if you cross-check with the bands in Hii Siew Cheng’s case, that 158/159 grammes falls at that level. So there we are: on Count 1, 5 years; Count 2, 5 years, 1 year consecutive.