HKSAR v. YIP CHEUK YAN

DCCC 244/2021

[2021] HKDC 1258

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 244 OF 2021

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.  The 1^st defendant has pleaded guilty to a single charge of Trafficking in dangerous drugs.

The prosecution’s case

2.  In the afternoon of 8 July 2020, police party had on the strength of a search warrant searched 2 hotel rooms of Harbour Plaza Resort City in Tin Shui Wai.

3.  At 1657 hours, police entered Hotel Room 1 and found a male Lin and 3 other persons inside.

4.  Upon entering Hotel Room 2 at 1710 hours, the 1^st defendant, a male Cheung and a female Shek were found inside, a search was also conducted inside this room, the police found the following items:-

(a)  2 transparent resealable bags containing suspected drugs;

(b)  25 transparent resealable bags containing suspected drugs;

(c)  One transparent resealable bag containing 32 transparent resealable bags containing suspected drugs;

(d)  One paper bag containing 24 transparent resealable bags containing suspected drugs;

(e)  One transparent resealable bag containing 94 transparent resealable bags; and

(f)  One electronic scale.

5.  Upon investigation, the 1^st defendant said the room was registered under Cheung’s name, and both Cheung and Shek were his friends.

6.  The 1^st defendant was arrested and cautioned, under caution, the 1^st defendant replied “Ah, sir, it was Lin Chung Po from 18^th Floor who told me to bring the drugs, I only helped him due to my reckless, I know my wrongdoing”.

7.  Video-recorded interview was taken from the 1^st defendant, he stated:-

(a)  He lived in Hotel Room 1 a week before his arrest and the room was rented by an unknown person. About 3 days ago, Lin moved in.

(b)  On 7^th July, his friend Kam Mo told him someone had rented Hotel Room 2, he later did go to Hotel Room 2 and played video games, afterwards he took the keycard for Hotel Room 2 and went back to Hotel Room 1.

(c)  He went out at 11 am, he returned to Hotel Room 1 a while later where Lin was present there, Lin gave him a bag containing ketamine and cannabis, Lin told him to bring the bag downstairs to repack the drugs. Lin also told the 1^st defendant, if anyone would buy the drug and he would receive a reward.

(d)  He took the drugs, an electronic scale and some resealable bags to Hotel Room 2, he opened the room door with a keycard and found female Shek was sleeping there. Male Cheung later came in Hotel Room 2, the 1^st defendant then asked him to phone and ask Lin how to repack the drugs. At this juncture, police party arrived.

(e)  Lin told the 1^st defendant to find customers sometime ago but he couldn’t find any. Cheung and Shek did not know about the drugs.

8.  The estimated street value of the ketamine is HK$20,676 and the cannabis is HK$4,475.

Mitigation and sentence

9.  The 1^st defendant is now 17 years old, at the time of the offence, he was only 15.  The 1^st defendant came from a broken family, he lives with his mother and stepsister, the family relies on CSSA.

10.  The 1^st defendant also suffers from ADHD, Tic Disorder and Conduct Disorder, he has been receiving regular psychiatric treatment at Tuen Mun Hospital.

11.  I am told, the 1^st defendant quitted school when doing his secondary one, after quitting school, he used to work as part time hairdresser apprentice for a few months but became unemployed since March 2020 until his present arrest.  Although he was not interested in study, he was very talented at playing football, and had once represented the HK Youth football team in international football matches held in Seoul in 2016, not to mention those football awards he received over the years.

12.  As to the offence itself, counsel submitted, the 1^st defendant was a naive young boy who was recruited by Lin to traffic in dangerous drugs.  He might be a rebellious young boy, and is admitted he got a burglary record and was put on probation, but his mother has never given up hope on him.

13.  The guideline for trafficking in ketamine, 10-50 grammes 4-6 years, see Hii Siew Cheng [2009] 1 HKLRD 1.  By applying strict mathematical methods, for 37.44 grammes of ketamine, it is about 63.72 months.  For 18.88 grammes of cannabis, under 2,000 grammes, up to 16 months' imprisonment.  I am urged by counsel to adopt the individual approach given the drugs are disparate in quantity and potency.

14.  Before I consider the proper sentence for the 1^st defendant, I have to bear in mind he is only 17, in this regard, a training centre and a detention centre reports are called for, and today I have these reports before me, comments from the reports are positive, the 1^st defendant is suitable for both centres.

15.  Counsel urged this court to consider detention centre as it is considered more suitable for the 1^st defendant.  However, given the gravity of the offence and the quantity of the drugs involved, even taking into account his young age and rehabilitation factor, it would still be out of proportion.

16.  As mentioned, given rehabilitation is more important to the 1^st defendant, I consider Training Centre order is more suitable, however it is submitted by counsel, given the period that he has been in custody, (about 15 months), if a Training Centre order were to be imposed, the defendant might end up serving a longer sentence than he would have received if prison terms were imposed.

17.  I agreed with counsel on this matter, I will adopt a starting point 63 months and given his young age and all mitigating factors considered, I will reduce the starting point by 6 months, that is 57 months for the ketamine, given the quantity of the cannabis involved, I do not consider it would affect the overall sentence, so the starting point remains at 57 months, the 1^st defendant is entitled to 1/3 discount, therefore the 1^st defendant is sentenced to 38 months’ imprisonment.