HKSAR v. YEUNG KIN HO

DCCC 1510/2024

[2025] HKDC 1724

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1510 OF 2024

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REASONS FOR SENTENCE

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The defendant pleaded guilty to 2 "trafficking" charges (Charges 1 and 2)  and a "simple possession" charge (Charge 3).

Summary of Facts

Charge 1

2.  About 3:50 p.m. on 2 April 2024, Acting SCO 18274 observed the defendant entering a village house situated at DD116, Lot 5202, Yau Cha Po, Yuen Long ("the House").  About 6:00 p.m. on the same day, the defendant left the House.

3.  From 3 to 5 April 2024, customs officers kept the House under surveillance.  They observed no one (including the defendant)  going inside.

4.  About 4:15 p.m. on 6 April 2024, the defendant returned to the House.  About 11:58 p.m. on the same day, he left the House carrying a black bag and 2 red plastic bags.  CO 18111 (PW2)  stopped the defendant for enquiry.  Upon search, the 2 red plastic bags were found to contain 330 small foil packets (some were marked "WD" and some, "SS")  which contained a total of 1,959 grammes of cannabis in herbal form.

5.  Under caution, the defendant admitted that the items contained in the 2 red plastic bags were cannabis and they belonged to him.

Charge 2

6.  Three keys were found in the defendant's right front trouser pocket.  The defendant stated that the keys were for entering 2 different locations.  He first led the customs officers to the roof of the House ("the Roof Cubicle")  using 2 of the keys.

7.  About 12:01 a.m. on 7 April 2024, the Roof Cubicle was searched.  The following items were found :-

On the kitchen counter:

(a)  a transparent box containing 3 transparent plastic bags which contained a total of 23.9 grammes of a solid containing 20.0 grammes of cocaine;

(b)  a paper bag containing 24 small foil packets which contained a total of 71.1 grammes of cannabis in herbal form;

(c)  packaging paraphernalia including 2 electronic scales, various types of foil packets and a sealing machine; and

Under the kitchen counter:

(d)  a nylon bag containing 15 vacuum-packed plastic bags which contained a total of 6,099 grammes of cannabis in herbal form.

8.  Under caution, the defendant admitted that the white crystalline solid was "Coke" and they belonged to him; the packaging paraphernalia were for packing cannabis; and the herbal plants were cannabis, which also belonged to him.  The defendant's admissions were post-recorded on PW2's notebook.  After being read back to him the notebook entry, the defendant requested to amend (i)  his knowledge of the white solid as "Coke" and (ii)  his ownership of the "Coke" to "Refused to answer".  His request was recorded on the notebook.  He then signed on the notebook to confirm his voluntariness and accuracy of the contents.

Charge 3

9.  About 5:15 a.m. on 7 April 2024, the defendant was brought to his residence at No.21A, Wai Tsai Tsuen, Ngau Tam Mei Road, Yuen Long ("the Flat")  for a house search.  Customs officers used the 3^rd key found on the defendant to enter the Flat.

10.  Upon search, on a table in the living room, a transparent box containing 3 white resealable bags which contained a total of 13.0 grammes of cannabis in herbal form was found.  A tenancy agreement and a water bill both in respect of the Flat and in the defendant's name were also found.

11.  Under caution, the defendant admitted that the 3 bags contained cannabis, which were for his own consumption.  He rented the Flat as his residence.

Other evidence

12.  The defendant's fingerprint and palm print were found on the metal gate of the Roof Cubicle.

13.  The defendant's mobile phone was examined with his consent.  WhatsApp messages dated 5 and 6 April 2024 between the defendant and someone using mobile phone number 6657 9466 appeared to contain packaging instructions for the herbal cannabis found in this case.  The defendant appeared to have acknowledged such instructions.

14.  The defendant now admits that he possessed the herbal cannabis and cocaine seized for the purpose of unlawful trafficking.

Mitigation & Sentence

15.  The defendant is 49 and has 5 conviction records, none of which were drug-related. Defence counsel Mr. But informed me that the defendant is single and resides alone at the Flat.  He seldom contacts his family members.  Since about March 2010, the defendant has been working as a hairdresser and a part-time funeral parlour worker earning about $20,000 per month in total.  His last conviction is dated 2007, meaning he has managed to stay out of trouble for over 15 years.

16.  In mitigation, Mr. But submitted that the defendant has been co-operative throughout.  He made full and frank admissions and wasted no one's time. Mr. But stressed that the defendant is remorseful and has reflected on his wrongdoing.  His employer, the hair salon owner, speaks positively about the defendant's work performance.  Mr. But also submitted that the defendant's role in this case was warehouse keeper, packaging and delivery,  the lowest rank in the hierarchy of drug trafficking.

17.  Drug abuse has been a long-term problem in our society.  A clear message must be conveyed to the general public that "drug trafficking" is a serious crime (be it in the capacity of a seller, courier or storekeeper)  and that drug traffickers (even fresh offenders)  would most certainly be punished by long-term imprisonment.

18.  The Court of Appeal has laid down clear sentencing guidelines for trafficking in herbal cannabis (see HKSAR v Nguyen Thang Loi [2023] 1 HKLRD 1329)  and cocaine[1] (see Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69 and The Queen v Lau Tak Ming & others [1990] 2 HKLR 370).  For herbal cannabis, under 2,000 grammes, the range is up to 16 months' imprisonment; 6,000 to 9,000 grammes, 36 to 48 months.  For 10 to 50 grammes of cocaine, 5 to 8 years' imprisonment.

19.  In Charge 1, the defendant trafficked in 1,959 grammes of herbal cannabis.  Applying a strict arithmetical approach, the starting point should be 16 months.  For ease of calculation, I adopt 15 months as the starting point.  With the timely guilty plea, I sentence the defendant to 10 months' imprisonment for this charge.

20.  For Charge 2, I have reminded myself of the sentencing principles for trafficking in cocktail drugs[2]. In this charge, the defendant trafficked in a cocktail of drugs consisting of herbal cannabis and cocaine.  For 6,170.1 grammes of herbal cannabis, applying a strict arithmetical approach, the appropriate starting point is 3 years.  Similarly, for 20.0 grammes of cocaine, 5 years and 9 months.  In my view, the "combined approach" would arrive at a realistic and fair sentence.

21.  Since cocaine is more potent than herbal cannabis, it shall form the basis of the starting point.  Hence, I adopt a starting point of 69 months' imprisonment and adjust it upward by 6 months for the herbal cannabis, arriving at 75 months.  With the timely guilty plea, I sentence the defendant to 50 months' imprisonment for Charge 2.

22.  In Charges 1 and 2, the defendant trafficked in a total of 8,129.1 grammes of herbal cannabis[3] and 20.0 grammes of cocaine.  I consider a global starting point of 78 months' imprisonment appropriate.  With the timely guilty pleas, the overall sentence for both charges becomes 52 months.

23.  In Charge 3, the defendant possessed 13.0 grammes of herbal cannabis.  I adopt a starting point of 3 weeks' imprisonment.  With the timely guilty plea, I sentence the defendant to 2 weeks' imprisonment for this charge.

24.  Bearing in mind the totality principle, I consider a total prison term of 52 months appropriate for all 3 charges.  Hence, I order the sentences for Charges 2 and 3 to run concurrently; and 2 months in Charge 1 to run consecutive to Charges 2 and 3.