HKSAR v. YAN SIN MAN

HCCC 513/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 513 OF 2014

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

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COURT: Defendant, I shall now proceed to sentence you. You may remain seated while I give you reasons for your sentence.

As I am sure you have been advised, as Mr Boyton has said in his mitigation, you know that upon conviction for this offence, you will be sentenced to a term of imprisonment. When I do eventually sentence you to that term of imprisonment, defendant, I shall ask you then to stand up.

Defendant, you have been found guilty after trial of the offence of trafficking in a dangerous drug. The drugs involved were 290 grammes of a powder containing 235.7 grammes of ketamine; 63.54 grammes of a crystalline solid containing 62.48 grammes of methamphetamine hydrochloride, otherwise known as “Ice”; 107.62 grammes of a mixture containing 61.33 grammes of heroin hydrochloride; and 10.79 grammes of a solid containing 6.82 grammes of cocaine.

On 23 September, at about 7.23 pm, you were seen to enter premises at 188 Fa Yuen Street, Room C. These drugs were found in those premises in three different locations. Some of the drugs were stuck up on the wall and the remainder was found in a pink and black box and a Hello Kitty cosmetic bag.

In your possession at the time you were intercepted by the police, you had with you a notebook containing dangerous drugs transactions; a pink mobile telephone also containing photos of a book containing drug transactions; and a wad of banks notes in the sum of $24,600.

As can be seen from the facts of this case, this room was clearly a storage for these drugs and was a distribution centre. It is clear from the verdict of the jury that you were involved in the trafficking of these drugs. The drug transaction records were very detailed, giving the price, the quantity, people’s names and locations. This was obviously a very big business, of which clearly you were involved in, either on your own or with other people. As you know, trafficking in dangerous drugs in Hong Kong is a very serious offence and the Court of Appeal has laid down sentencing tariffs when a person is convicted of this serious offence.

If one traffics in drugs in Hong Kong, one can expect an immediate custodial sentence. There is no exception for a person being of young age, or of elderly years, or disabled, or maimed, because trafficking is known to be a very evil offence affecting many people. The Court of Appeal in Hong Kong has laid down guidelines or tariff sentences for different types of drugs.

In your instance case, involved were four separate types of drugs. For trafficking in “Ice”, the guideline case is AG v Ching Kwok Hung. For the trafficking in heroin and cocaine, the guideline case R v Lau Tak Ming. For trafficking in ketamine, the guideline case is S for J v Hii Siew Cheng.

When there are a cocktail or a mixture of drugs used for trafficking, the courts usually take a combined approach rather than the individual approach, and that is what I will do. A combined approach is where the court looks at the overall quantity of drugs rather than the individual parcels, and the court will then take a global view and assess the most realistic and fair and appropriate sentence.

The most serious type of drug in this case is “Ice”, and following the guidelines in CACC 318/2013of HKSAR v Chan Yuk Leong, I will take the combined approach and convert the other remaining drugs as if they were “Ice”, which means that I will take a single tariff for the one drug that can be applied to the entire quantity. In the case of Chan Yuk Leong, the Court of Appeal gave a ratio of approximately 5 grammes of ketamine to every 1 gramme of “Ice”. That was stated in paragraph 14 and 15, and at paragraph 16 and 17, the Court of Appeal held that for every 3 grammes of heroin it would be an equivalent to about 1 gramme of “Ice”.

In those circumstances, defendant, I use the conversion rate for these drugs, please stand up, defendant.

Defendant, for the 235.75 grammes of ketamine, that would be converted to approximately 47.5 grammes of “Ice”. For the heroin and cocaine added together, which is 68.15 grammes, that would be converted to about 22.7 grammes of “Ice”. You already had 62.48 grammes of “Ice” in the form of purity, as stated in the charge, and that would make a total of 132.68 grammes of “Ice”.

Taking the guidelines laid down in Ching Kwok Hung, that would mean a sentence of 11 years’ imprisonment. Now, as stated earlier, you did not only have one type of drug. It is apparent from the authorities, and stated in Chan Yuk Leong and referring to the case of HKSAR v Yim Hung Lui Ricky CACC 266/2011, the Court of Appeal there pointed out 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 cater to a far wider market than where the trafficker traffics in only one kind of drug.

There were more than type, there were four types of drugs in this case, however, I accept that the types of drugs were separately packaged. They were not prepared in a mixture of two drugs together, which may be an even further aggravating factor. As they were separately packed, and they were four different types of drugs, the defendant, I enhance your starting point of 11 years by a further year, making the total term of imprisonment to which you shall serve to be one of 12 years’ imprisonment. I just note perhaps in my sentence that you are aged 24, and have 4 previous convictions, and they are for minor offences when you were 15 years of age.