HKSAR v. YU, YOUNG CHAE

HCMA379/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 379 OF 2008

(ON APPEAL FROM TWCC 481 OF 2008)

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J U D G M E N T

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1.  This is an appeal against a sentence of 8 months’ imprisonment imposed following a plea to trafficking in dangerous drugs.

2.  The drugs in question consisted of 21.69 grammes of ketamine, 6.35 grammes of Ecstasy, and 0.55 of a gramme of Nimetazepam.  So in effect, for guideline purposes, in the usual case, it would be some 28 grammes of drugs under the Ecstasy guideline.

3.  The Appellant was a visitor to Hong Kong.  He was a Korean on holiday here.  He is a respectable man.  He has no previous convictions and he is the chief executive of an advertising company.  He is 33 years old.

4.  The reason he pleaded guilty to trafficking in the drugs in question was because he was caught leaving Hong Kong, with the drugs in his pocket, at the airport.  He was going back home and so, of course, he was exporting.  But it was accepted at the Magistrates Court, and it has been accepted before me today, that the drugs were for his own consumption. 

5.  Applying the guideline case, a starting point of 2 years for proper trafficking would have been appropriate.  The magistrate recognised that these drugs were for self-consumption and he took a 20-month starting point and reduced that to 12 months because of the “technical nature of the offence”, and then gave a third off for the plea, resulting in a sentence of 8 months’ imprisonment. 

6.  Mr McGowan recognises that taking the drugs out of Hong Kong is an aggravating feature of the possession of the drugs, but because his client has been in custody since this sentence was imposed and has served just over 3 months’ imprisonment already, all he seeks to do is to reduce the length of the custodial term to that which would allow immediate release.  He makes the point that if this man had been stopped on the way to the airport, he would have been charged with simple possession and would probably have been unlucky to receive a custodial sentence.  He might have received one but, if he had done, it would have been one measured in just a few months.  He says that the change of label to trafficking merely because there was exportation is not such a grave aggravation as to raise the right sentence to as long as 8 months. 

7.  I agree with him.  In my judgment, a sentence of 3 months adequately fits the mischief of this Appellant’s conduct.  I regard a sentence of 8 months as paying too much regard to the label given to the conduct, rather than the conduct itself.

8.  Accordingly, I shall allow this appeal against sentence to the extent of reducing the 8-month period of imprisonment to one of 3 months’ imprisonment. 

Representations: