HKSAR v. YEUNG SHEK KIN

HCCC 329/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 329 OF 2016

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

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COURT:

I don’t propose to keep you in suspense. You are going to prison for 6 years and 9 months. After I have left court, Mr Donald will explain to you when you are likely to be released, bearing in mind the length of time you have been in custody on remand.

Although you did not give evidence at your previous trial, the case put on your behalf was that the only drugs which you knew were in your flat was the ‘Ice’, and that the ‘Ice’ was for your own consumption. By your plea of guilty to the one count in the indictment that you face, you admit that what you said about not knowing about the presence of the other drugs in your flat was untrue. You accept that your plea of guilty amounts to an acknowledgement on your part that you were trafficking in all the drugs found in your flat with the exception of the ‘Ice’. There is no direct evidence of where you were in the distribution chain, but since there was no drug paraphernalia in your flat, and since the drugs were in numerous packets, it looks as if you were either selling the drugs yourself to end users, or you were arranging for others to do that. Either way, you have to be sentenced on the basis that you were a relatively low-level trafficker in drugs.

You will have been told that the Court of Appeal has laid down guidelines for the appropriate sentence for people trafficking in drugs. The guidelines are based on the amounts of the drugs involved, not the role the defendant played in the enterprise, though the court does not look at the weight of the drugs as a whole. It focuses on their narcotic content. The weight of the narcotic content of the drugs in your case was almost 71 grammes of heroin, just over 3½ grammes of ‘Ice’, just under 1 gramme of ketamine, just over half a gramme of a metabolised form of heroin and tiny amounts of the stimulant methamphetamine and the sedative midazolam. I recognise that if you had been trafficking in drugs before the day of your arrest, then had you been arrested a week earlier or a week later, the quantities of drugs that you might have had in your flat might have been very different. It was therefore a matter of chance that on this occasion, you happened to have these quantities of drugs in your flat, but what you had in your flat at the time of your arrest is the only basis upon which the court can sentence you.

The guidelines say that the appropriate range for someone who is convicted of trafficking in heroin with a narcotic content of between 50 and 200 grammes, after pleading not guilty, is from 8 to 12 years’ imprisonment. The appropriate range for someone who is convicted of trafficking in ‘Ice’ with a narcotic content of up to 10 grammes is from 3 to 7 years’ imprisonment, although I deal with you on the basis that the ‘Ice’ was for your personal consumption and therefore not for trafficking. No appropriate range has been identified for the ketamine or the simulant or the sedative found in your room with the narcotic content which they had.

There is no reason for departing from the guidelines in your case, though it would not be fair if I simply took the appropriate sentence for each of the drugs you had in your flat and then aggregated them. The fairer and more realistic approach is to take the longest sentence which would have been passed for the drugs which you were caught trafficking in if you had to be sentenced for those drugs separately, in this case the heroin, and then to take into account the fact that you were caught trafficking, albeit in less significant quantities, in other drugs and that you had the ‘Ice’ for your own use. I bear in mind that the Court of Appeal has said that trafficking in a variety of drugs is an aggravating factor. But at the same time, I must be careful not to sentence you twice over for the same thing.

In the light of the nature of your trafficking, the quantity and variety of the drugs you had in your room, the fact that the narcotic content of the heroin was towards the lower end of the appropriate range, the fact that you had the ‘Ice’ in your flat for your own consumption rather than for trafficking, and the fact that you have been sent to prison a number of times in the past for trafficking in drugs, a starting point for sentence in excess of 9 years’ imprisonment might have been appropriate. But you were sentenced to 9 years’ imprisonment at the conclusion of your original trial, and I do not think that I should take a longer starting point unless there were circumstances which really justified my doing so. I do not think that I should take a longer starting point than that on this occasion. Accordingly, I propose to take a starting point of 9 years’ imprisonment.

You are entitled to have your sentence reduced because of your plea of guilty, even though the court was only recently notified of your intention to plead guilty. The discount which should be given to you is unaffected by the new regime laid down by the Court of Appeal for giving credit for pleas of guilty, since the date for your trial was fixed before 2 September when that new regime took effect. The discount you should get should therefore reflect previous practice.

A number of previous decisions of the Court of Appeal have said that if a defendant contests his first trial, and only pleads guilty at a retrial ordered after he has succeeded in his appeal against conviction, it is open to the court to withhold the customary one-third discount. Had you pleaded guilty before your first trial, the costs of that trial and your appeal would have been avoided. In the circumstances, I propose to discount your sentence by one-quarter only. That means that the sentence which I pass on you on the sole count on the indictment is 6 years and 9 months’ imprisonment.