HKSAR v. YIP TAK KIN AND OTHERS

DCCC901/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 901 OF 2007

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Reasons for Sentence

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1.  D1, would you stand up, please.  You have been found guilty after a full trial of Charge 1, which was trafficking in 0.37 grammes of a crystalline solid containing 0.27 grammes of cocaine. 

2.  Sentencing for this offence carries a tariff similar to that for heroin as set out in HKSAR v Lau Tak Ming [1992] HKLR 370, as confirmed by the Attorney General v Rojas [1994] 1 HKC 342, and it is the narcotic content of the drug that I should use for sentencing purposes.  The tariff sentencing range is from 2 years to 5 years for up to 10 grammes of cocaine, and the factors that the court should take into account when sentencing for these offences are set out in that Lau Tak Ming case.

3.  I find this was not a case where a significant or quantifiable portion of the drug was being used for your own consumption.

4.  On Charge 2, you are charged with trafficking in an unknown quantity of ketamine. 

5.  This was also not a case I found where a significant portion or a quantifiable amount of the drug was for your own consumption, and the amount of drug I found from the evidence was sufficient for Bo Bo to inhale.  As this amount was unknown, I must obviously take a very small amount when considering sentencing.

6.  At the time of this offence the sentencing tariff in ketamine was governed by the tariff for Ecstasy, as set out in HKSAR v Lee Tak Kwan [1998] 2 HKC 371, as confirmed in HKSAR v Mok Yiu Kau, CACC256/2006.  Therefore, up to 25 grammes of ketamine was therefore up to the court’s discretion on sentencing, the next band starting at 2 years.

7.  For Charge 3, inhaling ketamine, this would also obviously involve only a small amount of the drug.  There is no tariff for this offence and sentences in 2006 for this offence for a first offender ranged from a fine to a short period of imprisonment. 

8.  The fact that all these offences took place in a nightclub can be an aggravating factor for sentencing purposes, but in this case I have decided it is not an aggravating factor as I found the Star Club was not the sort of place where lots of young people would gather and be influenced.  The Star Club was obviously for very rich businessmen.

9.  I found that you were well-aware of what you were doing and that you were not subjected to entrapment which forced you to participate in the offences. 

10.  You were a serving police officer at the time of the offence and your conviction for such offences must obviously reflect upon the integrity of the police force as a whole.  This, I find, is an aggravating feature.

11.  This incident has destroyed what was an excellent career in the police, it has destroyed your marriage, and you have been made a bankrupt.  You also face a long prison sentence for these offences, which will undoubtedly be very hard for you as a former police officer. 

12.  I also note that there was no proven evidence that you ever supplied police information to the club owners or that you had been corrupt, and there was no proven evidence that you had failed to properly perform your police duties.  The background report, to the contrary, suggests your performance was outstanding in 2006.

13.  I note that the offences were committed whilst you were off duty as a police officer, although I understand technically a police officer is never off duty.

14.  Having considered all these factors, I am of the view that the aggravating factor of your being a police officer and the other matters that I have just referred to cancel each other out and I have therefore decided not to make any enhancement of sentence for this aggravating factor.

15.  You will also most likely lose all your pension benefits and find yourself after serving your prison sentence with having to start your life again with nothing.  I note, however, there is no final decision upon this aspect before me and I therefore do not believe it would be right for me to discount for this aspect.

16.  There has been a delay in your being charged after your arrest of roughly 11 months.  Thereafter, the delay in this case has been due to your pleading not guilty which involved the matter having to go to a full trial.  There were delays at the outset of the trial but I find much of this delay was due to your first counsel’s applications.  I only found part of those applications had any merit. 

17.  There was also delay due to you having to be admitted into hospital, which was undoubtedly connected with the strain of these proceedings.  I note in this regard that your psychiatric condition is being managed and I find that you can have the necessary treatment while serving a prison sentence if further treatment is required.

18.  I found after considering all these aspects that the delay in your case has not been such as to warrant any discount in sentence.

19.  I have been impressed, however, with your community service, which I find has been longstanding and has been also outside your police duties, and I find that this community service by you has brought considerable benefit to others who wee in need.  I am therefore prepared to give you a discount for this aspect on sentencing as you have, in my view, a positively clear record.

20.  I note in this case that you have not shown any remorse during the trial and not even to the probation officer.

21.  As you know, I have not called for a Drug Addiction Treatment Centre Report because of the trafficking offence against you, and there is no suggestion that you are a drug addict.  If it is found that you are, then of course you can receive drug treatment whilst serving a prison sentence.

22.  For Charge 1, I take a starting point of 2 years’ imprisonment, after noting HKSAR v Au Kwok Chai, HCMA10/2008, where a narcotic content of 0.45 grammes of heroin attracted a 2 year starting point.  For Charge 2, I take a starting point of 3 months after considering HKSAR v Lau Chi Chung, HCMA295/2002.  For Charge 3, I take a starting point of 7 days’ imprisonment.  As these offences arose out of the same incident, I order them all to run concurrently. 

23.  So D1, you will serve 2 years’ imprisonment less a period of 2 months discount which I give for your community service, making a total imprisonment of 22 months.

24.  I find that a Probation Order, a Community Service Order or suspended prison sentence are inappropriate due to the seriousness of Charge 1.  Yes, sit down, please.

25.  D2, please stand up.  You have been found guilty after a full trial of Charge 1 of trafficking in 0.37 grammes of a crystalline solid containing 0.27 grammes of cocaine.  This was not a case of a significant or quantifiable amount of the drug being for your own consumption.

26.  For Charge 2, that was trafficking in an unknown quantity of ketamine.  I found you distributed this drug to D1 for him to inhale.  The amount of drug I shall treat in the same way as I said for D1 on this charge.

27.  I found this was not a case of addicts sharing drugs and it was not a case of a significant or quantifiable portion of the drug being for your own consumption.

28.  For Charge 4, that was inhaling ketamine, you were seen inhaling this drug, and for sentencing purpose, it would obviously be a small amount.

29.  These offences were not just an isolated incident in my view and I found that you willingly participated and were not a victim of any circumstances, as has been suggested.

30.  There are no aggravating factors in your case, and I note that you also have shown no remorse.

31.  You have a nodule on your lung, which must be very worrying for you.  However, the final diagnosis of this has not yet been reached.  You complain that you cannot take the proper medicine whilst you are in custody.  If this is the case, I am sure that there are proper avenues for you to lodge a complaint and to have the matter properly investigated.  I also find that you would be able to undergo the necessary surgical procedures whilst serving a prison sentence, or chemotherapy, if that was found necessary.

32.  I have been asked to give you credit for this on a humanitarian ground, and I have decided, after considering this matter, that I will give you a discount on your sentence, but only a small one.

33.  You have a walking difficulty but I note that this is not a new injury and I find it is no ground for a sentence reduction.

34.  The fact that you have allowed the trial to continue whilst you had illness is to your credit, but I find it does not justify a sentence reduction as it was also in your interests to have this matter concluded as soon as possible.

35.  In relation to the delay before you were charged and the delay before the trial began and the earlier part of the trial, I find in your case that the delay has not been of such a sizeable delay that it warrants a sentence reduction.

36.  Again, you have joined in applications made by D1 at the outset of the trial and therefore the delay at that stage has also been partly due to this.  As I said to D1, there was only merit in part of the applications.

37.  You have a clear record but I find this does not justify any sentence reduction given the seriousness of Charge 1.

38.  For Charge 1, I take a starting point of 24 months’ imprisonment.  For Charge 2, I take a starting point of 3 months’ imprisonment.  For Charge 4, I take a starting point of 7 days’ imprisonment.  As all the offences arose out of the same matter, I order the sentences to run concurrently.

39.  You will serve 2 years’ imprisonment less one month for your illness that I have referred to earlier, making a total of 23 months’ imprisonment.

40.  I find that a Probation Order, a Community Service Order or suspended sentence is also inappropriate in your case due to the seriousness of Charge 1.  Yes, you may sit down.

41.  D3, please stand up.  D3, you were found guilty after a full trial of Charge 7, and I did not find from the evidence that your involvement with CoCo was limited to the amount of $200.  I found by inference that you were living off the earnings of CoCo and I also found that you clearly had involvement with the attendance of other girls who attended with you at the Star Club that night.  However, only CoCo prostituted herself on that occasion.

42.  You have a clear record.  I also accept that had you not become entangled with D1 and D2 on this matter your case would have been dealt with in a magistracy court.

43.  I accept that there is no tariff for this offence and I accept that sentences in the magistracy vary from fines to imprisonment, although I find it would be usual for a prison sentence to be imposed, most particularly after trial.

44.  I find there has been delay before this matter was brought to trial, and whilst part was due to your denial of the offences and your later supporting D1’s applications, part was outside your control.

45.  I find your offence is at the lower end of the scale of this particular offence and I find there has been no exploitation of others, particularly minors, and you were not involved in any vice establishment activities directly.  I also note that your last employer is willing to take you back if you are given the opportunity to return to work.

46.  I also find there is some belated remorse on your part and I believe the chances of you re-offending are quite slim, given the hard lesson you have learnt from this trial and to the financial cost to you.

47.  You are also very lucky you have a loving and supporting family behind you, and I note that you have been on remand for 26 days.

48.  Probation is recommended for 12 months.  I am of the view that a Probation Order can be made in this case but it should be one of 3 years’ probation and not 12 months.  Therefore, before I can make a Probation Order I need your consent to a Probation Order being made for a period of 3 years and your consent and understanding to the conditions that are going to be imposed.

49.  I believe this period is necessary for you to put your life in order and to give you plenty of guidance and make sure that your work and other activities do not cause you to step out of line again.

50.  Do I have your consent to a 3 year Probation Order?

3rd DEFENDANT:  Yes.

51.  Yes.  And the conditions will be that you will be of good behaviour and keep the peace, that you will work and reside as directed by the Probation Officer, and that you will participate in any social or educational groups or programs as directed by the Probation Officer.  Do you understand those conditions?

3rd DEFENDANT:  I understand.

52.  Do you agree to comply with those conditions?

3rd DEFENDANT:  Yes.

53.  Yes.  Then I make a Probation Order against you for 3 years on those terms and conditions.

54.  Let me make it very clear to you that during the next 3 years if you breach this Probation Order or you commit another criminal offence, I have the power to re-sentence you again for this matter, and I can tell you on this occasion you have escaped prison by the skin of your teeth, so you are aware of the likely consequences if you do breach this order.  Is this matter fully understood by you?

3rd DEFENDANT:  I understand.

55.  All right, you may sit down.