HKSAR v. YAU HOI YIN

HCCC 281/2016

[2018] HKCFI 644

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 281 OF 2016

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

Defendant, I am sentencing you on the basis that you have pleaded guilty to a charge of trafficking in a dangerous drug, contrary to Section 4(1)(a) and (3) of the Dangerous Drugs Ordinance; in that, on 28 October 2015, at the Ground Floor, Cheung Tak House, Cheung Wah Estate, Fanling, New Territories, you unlawfully trafficked in 243 grammes of a powder containing 202 grammes of ketamine.

The facts were that on 28 October 2015, a team of police officers carried out an anti-narcotic operation at Cheung Wah Estate, Fanling. At 4.45 pm, they saw you entering Cheung Tak House, Cheung Wah Estate, via a backdoor with a male named Cheung. Both of you were intercepted at the ground floor. Whilst an officer was searching your sling bag he saw you moving your right hand to your back. He immediately grabbed your right hand and saw in your hand a transparent plastic bag containing the drugs as stated in the charge.

When cautioned you said that the ‘K Chai’ was for your own consumption. A search of your sling bag found, amongst other things, an electronic scale with traces of powder later found to be a powder containing ketamine and cocaine. In a subsequent video recorded interview conducted shortly after midnight on 29 October 2015, you stated that the bag of suspected dangerous drugs was ketamine which you had bought upon Cheung’s instruction.

You had known Cheung for about five months. He knew you were addicted to ketamine. A few days before, Cheung asked you to help him obtain ketamine without telling you why he needed it. In return you were promised free ketamine for your own consumption. Using your own contacts you bought a bag of ketamine for $26,000 with the money that had been given to you by Cheung. You then concealed the bag of ketamine at your back underneath your underwear.

Later, you and Cheung went to Cheung Tak House where you had been told you would hand over the drugs to Cheung at the staircase and there you were intercepted at the ground floor.

At the time of seizure the ketamine had an estimated retail value of $31,104.

I set out the background to your plea of guilty. The committal of this case at the Eastern Magistracy was on 17 June 2016. The case was listed in the Court of First Instance on 10 November setting out the pre-trial review date of 15 September 2017 and the trial dates to take place between 23, 27 and 30 October 2017. It is noted that the date you were committed to the Court of First Instance was in June 2016, that is, before the new case of Ngo Van Nam setting out the sliding scale of discounts.

At the pre-trial review hearing before my learned brother DHCJ Lugar-Mawson, you indicated through your counsel that you would plead guilty to the charge. Approximately a week later, on 22 September 2017, you were arraigned and you pleaded guilty and admitted the summary of facts which I have just read out. You were, however, not sentenced on that day. There were matters that were ongoing and your sentence was adjourned to 13 October 2017. On that date you were still not sentenced as the prosecutor, Mr Edward Laskey, and your counsel, Mr Raymond Yu, informed my learned brother that the matters were still ongoing.

The case was adjourned to 9 November 2017. On that date both counsel on fiat, Mr Laskey, and Mr Yu informed my learned brother that matters were still ongoing and asked for the sentence to be adjourned. As my learned brother’s commission as sitting as a deputy judge had run out or expired, the matter came before me on 22 January 2018 for sentence. At that hearing both counsel, Mr Laskey and Mr Yu, applied to adjourn sentence as matters were still ongoing. I refused that application for an adjournment as the matters that were ongoing was now ‑‑ it was three months or more since you had pleaded guilty and the matters that they informed me of would have taken a lot longer than a few more months to resolve.

In the circumstances, I then retook your plea. You then pleaded guilty before myself and admitted the same summary of facts. On that date you then terminated the services of Mr Yu. Legal Aid granted you another counsel who appeared before me for mitigation on 5 February 2018, who was Mr Phil Chau. On that resumed hearing date for sentence, Mr Chau informed me that you sought to reverse your plea of guilty as there were allegations of misrepresentation and that your plea was not voluntary and it was a nullity.

The hearing to reverse your plea of guilty to not guilty was then heard on 26 February 2018. Having made inquiries in holding a hearing on whether your plea was a nullity, I ruled that it was not a nullity and your plea of guilty stood. That was some two days ago and since that time you have also terminated the services of Mr Chau and you are now acting in person with no legal representative.

For the purposes of sentence, your plea of guilty is after you have had a hearing on whether you can change your plea from guilty to not guilty.

In HKSAR v Thattephin Tanyamon [2008] 5 HKLRD 155, the Court of Appeal there dealt with a similar matter whereby the defendant pleaded guilty to a charge of trafficking in dangerous drugs, however, then sought to reverse her plea of guilty. The Court of Appeal held that, in general, to have a one-third discount to sentence was given where the defendant pleaded guilty without wasting the court’s time.

In deciding whether less than one-third discount was to be given the main consideration was not the nature of the defendant’s application, ie, whether it arose from a dispute as to the facts of the case or whether it was for a change of plea from guilty to not guilty, but was whether the defendant had wasted the court’s time by requiring the court to deal with the application. The Court of Appeal case found the defendant had wasted the court’s time, following which the defendant’s application was dismissed and held the judge was therefore correct in giving a one-fourth discount.

In this case, Defendant, I am of the view that you have wasted the court’s time by requiring the court to deal with your application, and for the purposes of this sentence hearing I shall award you not a one-third discount but a one-fourth discount from the starting point.

Defendant, you are 29 years of age and have a clear record. You have received up to secondary 3 education. You were unemployed at the time of the arrest and worked in a hair salon before. You had been drug-dependent taking ketamine for almost one year at almost daily frequency. You are single and live with a friend at a public housing flat in Tai Po. Your parents separated when you were young.

You have written me a letter in mitigation which has been translated to me this afternoon. I have taken into account what you have said in your letter and in summary you now say you choose to plead guilty because you know you are wrong. You hope to mend your ways and you have promised not to associate with bad peers anymore and to stop taking drugs. The strongest mitigating factor, Defendant, is your plea of guilty. There is nothing in the mitigation before me to award a further discount of more than 25 per cent.

Defendant, the trafficking guidelines for ketamine are laid down in Hii Siew Cheng. You had been trafficking in 202 grammes of ketamine. The Court of Appeal has laid down that for between 50 to 300 grammes of ketamine a tariff to be imposed after trial would be a sentence of between 6 to 9 years’ imprisonment.

Defendant, had you been convicted after trial for the amount of 202 grammes of ketamine an appropriate starting point would be one of 7 years and 9 months’ imprisonment. Giving you a discount of one-quarter or 25 per cent, you are sentenced to 5 years and 10 months’ imprisonment.