HKSAR v. YUEN SIU-MING

HCCC 304/2020

[2021] HKCFI 2536

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 304 OF 2020

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

The defendant faces two counts of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134, and the defendant pleaded guilty before a magistrate and was committed to the Court of First Instance of the High Court for sentence.

The Summary of Facts admitted by the defendant disclosed that at the material time a team of Customs officers were conducting an anti-narcotics operation in Cheung Sha Wan area. The defendant was stopped and searched by Customs officers after he emerged from a factory building. From the shoulder bag carried by the defendant, the officers found 39 transparent resealable bags containing what was later confirmed to be 34.9 grammes of a solid containing 27.6 grammes of ketamine. That would be referred as DD-1.

Upon arrest and caution, the defendant admitted, among other things, that he was waiting for a call to deliver the drug and he would receive a reward of $1,000 per day, and that is the 1st count.

The defendant then led the officers to a flat which is Flat A on the 4th floor of the factory building. Using the key card and keys found inside the defendant’s shoulder bag, the officers gained entry to Room 18 inside this Flat A. Now, inside this room, officers found, among other things, nine items of dangerous drug inside a box, and these drugs would be referred to as DD-2 to DD-10.

So DD-2 is inside one bag. It is 246 grammes of a solid containing 198 grammes of ketamine; DD-3, also inside one bag, also 246 grammes of a solid, 185 grammes of ketamine; DD-4, inside one bag, again 246 grammes of a solid containing 213 grammes of ketamine; DD-5, inside one bag, 141 grammes of a solid, 107 grammes of ketamine; DD-6, inside one bag, it is only 0.67 gramme of a solid containing 0.36 gramme of ketamine; DD-7, inside one bag, 176 grammes of a solid containing 153 grammes of ketamine; DD-8, inside one bag, 6.89 grammes of a solid containing 3.5 grammes of cocaine. DD-9 were inside 15 bags, 2.85 grammes of a solid containing 1.42 grammes of cocaine. And the last one, DD‑10, they were inside 75 bags and the total 13.9 grammes of a solid, 6.84 grammes of cocaine.

Apart from these, there were empty transparent bags, there was an electronic scale, there was a sealer, a spoon, and a pair of scissors were found inside the flat, and there was also a rental receipt in the name of the defendant found inside of the room.

Upon arrest and caution, the defendant admitted he was the one who put the dangerous drugs inside the box and he worked for someone and was waiting for instructions how to deal with those dangerous drugs.

The total amount of dangerous drugs found inside the room, that is items DD-2 to 10, amount to 1,055.67 grammes of a solid containing 856.36 grammes of ketamine and 23.64 grammes of a solid containing 11.76 grammes of cocaine.

The street value of all the dangerous drugs, that is DD-1 to DD-10, were estimated to be around HK$700,000.

Now, the defendant’s background and mitigation. The defendant was born in 1968 and is now 53 years of age. He has a clear record. The defendant is a divorcee. He has a 25-year-old son and a 24-year-old daughter. His daughter has just completed her university studies and his son works as a lift technician. The defendant is educated up to Form 3 level and was unemployed at the time of offence.

In mitigation, I was informed that the defendant used to work as a tourist coach driver and was the sole breadwinner of the family. Due to the social events and the decline of tourists in 2019, he became unemployed and the defendant stupidly committed the present offences to earn quick money.

Defence counsel, Mr Yuen, submitted that the defendant was not the mastermind and his role was to wait for instructions from the boss and to deliver the dangerous drugs from the flat to a middleman. There was no evidence of the defendant being involved in other organised crime or triad activities. There was also no international element involved.

Mr Yuen has very helpfully prepared a table showing the three tests to assist me. That is the absurdity test, the conversion test, and the ratio test. I will refer to the table at a later stage.

Mr Yuen submitted that the Court should consider a starting point of around 13.57 years before considering other mitigating factors. The defendant was remorseful and had pleaded guilty at the earliest available opportunity. Mr Yuen also submitted that the defendant should be given the full one-third discount.

I was handed four letters in mitigation: one from the defendant, one from the son, one from the daughter and one from a pastor in prison. I do not think there is any need to refer to the contents of the letters. Suffice it to say that as far as the defendant is concerned, he is very remorseful and he is now aware of the damage that drugs can cause to the society and they ask for a lenient sentence so that he could return home and be with his family as quickly as possible. The children, of course, were very very shocked to find out what had happened, and to them, the father had always been upright and an honest man and they were surprised, to say the least, that the father has committed such a serious crime and of course as children, they also asked the Court to be as lenient as possible.

Now, this is my consideration for the sentence. First of all, trafficking in dangerous drug is a very serious offence. A person convicted of this offence on indictment is liable to a fine of HK$5 million and to imprisonment for life.

The defendant was convicted of two counts of trafficking in dangerous drug. In the circumstance of the present case where both offences were committed on the same day and the facts were closely linked in that the dangerous drug, that is the ketamine in Count 1, was obviously connected with the dangerous drugs in Count 2, so the proper approach is to have regard to the total amount of dangerous drugs in Counts 1 and 2 so to arrive at an overall starting point. And for the authority, the case of HKSAR v Chow Yu Chi, CACC 359/2000, and HKSAR v Cheung Kwok Leung [2003] 3 HKLRD 542 and HKSAR v Wong To [2001] 4 HKC 499.

Further, the defendant is convicted of trafficking two different kinds of dangerous drugs. So for the trafficking of more than one kind of drugs, there are two sentencing approaches open to the sentencing judge: an individual approach or a combined approach.

Now, I will first look at the appropriate starting point of each drug before deciding which approach is better, bearing in mind no matter which approach is adopted, it is the overall sentence that is important.

Starting point for cocaine. According to the guidelines in the case of R v Lau Tak Ming which is applicable to the trafficking of cocaine, trafficking 10 to 50 grammes of cocaine, the starting point after trial is 5 to 8 years. So the amount of cocaine involved here is 11.76 grammes. So on a mathematical calculation, the starting point is 5.1 years.

Now, the starting point for ketamine. In the case of Secretary for Justice v Hii Siew Cheng, the Court of Appeal set down guidelines for the trafficking of ketamine. And the total amount of ketamine amounts to 883.96 grammes. That is adding the amount of ketamine in Count 1 to the amount of ketamine in Count 2. So 883.96 fits into the band of 600 to 1,000 grammes. The starting point is 12 to 14 years. So again on mathematical calculation the starting point is one of 13.4 years.

After setting out the starting point, I will have to decide on the proper approach. Now, the amount of cocaine is 11.67 grammes whereas the amount of ketamine is 883.96 grammes. So adding all the drugs together, the total amount is 895.72 grammes.

While cocaine is the more potent drug, the amount of cocaine was less than 2 per cent of the total drugs involved, that is 1.31 per cent, with the ketamine making up the bulk of the dangerous drugs, that is 98.69 per cent. I am of the view that a combined approach using ketamine as a base and enhancing the starting point to take into account the amount of cocaine would be a proper way to consider the appropriate sentence.

I have already mentioned that Mr Yuen has very helpfully prepared a table showing the result of the three tests: he absurdity test, the conversion test, and the ratio test. For the absurdity test, Mr Yuen notionally added up all the dangerous drugs and assumed that they are all cocaine. So for 895.72 grammes of cocaine, the starting point is 21.47 years.

Next, the conversion test. On the basis that 13.4 years for ketamine, that would equal to 293 grammes of cocaine, and the total amount of cocaine would be then 304.76. The starting point is 13.57 years.

For the ratio test, cocaine represents 1.31 per cent of the total amount of dangerous drugs whereas ketamine 98.69 per cent. So the starting point is also 13.57 years. Now, I will add here that if all the drugs were ketamine, 895.72 grammes would attract a starting point of 13 years and 6 months.

So having considered all these figures, I am of the view that for the basis, the starting point of 13.4 years, that would amount to 13 years and 5 months. 2 more months should be added to reflect the presence of cocaine, making an enhanced starting point of 13 years and 7 months. So that would equal to 163 months.

Now, I accept that the defendant was not the mastermind and this is the first time he committed any offence. There are no aggravating factors to increase this starting point.

The defendant pleaded guilty at the earliest available opportunity and is entitled to the full one-third discount but there are also no other grounds to further reduce the sentence.

So with a full one-third discount, the sentence is one of 108 months, which would be equivalent to 9 years.

(Discussion re calculation)

So the actual sentence to be passed for Count 1, trafficking in a dangerous drug, the defendant is sentenced to 9 years’ imprisonment; Count 2, trafficking in dangerous drugs, also 9 years’ imprisonment; both sentences to run concurrently, making a total of 9 years’ imprisonment.