HKSAR v. YIU HO HIN

DCCC 1018/2017

[2018] HKDC 292

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1018 OF 2017

------------------------------

------------------------------

---------------------------------------

REASONS FOR SENTENCE

---------------------------------------

1.  The defendant, a 26-year-old man who was stopped by customs officers at the Lo Wu border checkpoint, was trying to bring into Hong Kong drugs as well as dutiable commodities.

2.  He pleaded guilty before me to 3 counts of offence:-

(1)	- one count of trafficking in dangerous drugs – the drugs in question are 145 grammes of a powder containing 54 grammes of Ketamine (Charge 1);
(2)	- one count of possession of dutiable commodities – 17 cigarettes (Charge 2);
(3)	-  one count of failing to declare to a customs officer (Charge 3)

3.  The defendant left for Shenzhen through Lo Wu checkpoint at around 10:45p.m. on 26 July 2017 and came back to Hong Kong by the same route about an hour later.

4.  The defendant took the “Nothing to declare” Green Channel but was stopped by customs officers for a check. The officers found a bag of drugs, the subject matter of Charge 1, hidden in his underwear and asked him about it, the defendant said that he brought the drugs into Hong Kong for someone for $1,000.

5.  Upon further search, the officers found some 36 cigarettes in the defendant’s waist bag, which is more than that which an adult is allowed to bring in here free of tax, i.e. 19 cigarettes, and consequently, the defendant had failed to declare to a customs officer the extra.  

6.  Also found on him were cash approximately 5,000 HKD, an odd hundred or two Renminbi, plus two mobile phones with 4 sim cards.

7.  The street value of the seized drugs is estimated to be about $44,660.

8.  The defendant has 5 previous convictions, two of which are drugs-related including one for trafficking back in 2011 for which he was given a prison term of 4 years and 8 months. His last conviction is in 2015 for possession of drugs for which he was sent to DATC.

9.  Counsel for the defendant said that the defendant was brought up by his grandparents who are also in court today to show concern and support for him. The defendant committed the offence as he needed money to marry his girlfriend. In his letter to the court, the defendant expressed his remorse for what he had done, said he had joined some Catholic religious group while in remand and promised to turn over a new leaf.

10.  Counsel accepted that there was an international element involved in the instant case for the defendant was trying to smuggle drugs across the border, but asked the court, relying on the case Chung Ping Kun CACC 85/2014 – a case is concerned with trafficking in 230 grammes of ice, not to enhance too much on the ground that the drugs in the present case are less potent and of lesser amount than that which in Chung’s case. In Chung’s case, the enhancement of one year was reduced to 6 months on appeal.  

11.  According to the sentencing guidelines, for trafficking between 50 gs and 300 gs, a term of 6 to 9 years is to be considered.

12.  Given the amount (i.e. 54 grammes Ketamine) the defendant admitted trafficking, I take 6 years as starting point. As for the international element, I add 3 months further. As far as his mitigation is concerned, apart from his guilty plea, there isn’t any other substantial mitigation.

13.  His plea is timely so he is entitled to a full one-third discount. Deducting the appropriate discount, the starting point of 75 months is reduced to 50 months. There being no reason for any further reduction in sentence, the defendant is sentenced to 50 months’ imprisonment for the offence of trafficking.

14.  As for the two customs offences, charge 2 carries a maximum of fine up to 1 million and 2 years’ imprisonment while charge 3 carries fine up to $2,000 only with no imprisonment as a sanction. The defendant is fined $500 each; the total fine is one of $1,000, and has two weeks to pay.