HKSAR v. YIP CHING YIN

DCCC 1064/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1064 OF 2014

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Reasons for Sentence
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1. The defendant pleaded guilty before me to one charge of trafficking in a dangerous drug in that he on 25 September 2014, at 8th Floor, Lotus Tower (Block 4), Kwun Tong Garden Estate, Kwun Tong, Kowloon, unlawfully trafficked in a dangerous drug, namely 7.89 grammes of a crystalline solid containing 7.70 grammes of methamphetamine hydrochloride.

2. The Agreed Facts basically are that on the above date, near Room 104 of the above address, the police stopped the defendant for a search.  In his left front trouser pocket was found a transparent resealable plastic bag containing 3.55 grammes of a crystalline solid containing 3.46 grammes of methamphetamine hydrochloride (“Ice”).

3. Under caution, the defendant said he was carrying the “Ice” as he intended to go downstairs to see whether anyone wanted it, so as to earn some money. 

4. The defendant was arrested.  Under caution, he said he sold the “Ice” to earn some money. 

5. The defendant took the police into Room 104 which he said was his residence. 

6. Upon search, the following were found in a storage space of the computer desk in the defendant’s bedroom:

(i) one transparent plastic box containing items (ii) to (vi);

(ii) one transparent resealable plastic bag containing 3.50 grammes of a crystalline solid containing 3.42 grammes of methamphetamine hydrochloride;

(iii) one transparent resealable plastic bag containing 0.84 grammes of a crystalline solid containing 0.82 grammes of methamphetamine hydrochloride;

(iv) 200 transparent resealable plastic bags, namely 13 with dimension of 4 centimetres by 6 centimetres; 8 with dimension of 4 centimetres by 4 centimetres; 13 with dimension of 5 centimetres by 7 centimetres; 30 with dimension of 5 centimetres by 7.5 centimetres; 34 with dimension of 6 centimetres by 9 centimetres; 1 with dimension of 10 centimetres by 17 centimetres; 100 with dimension of 2 centimetres by 2.5 centimetres; and 1 with dimension of 6 centimetres by 8.5 centimetres;

(v) one electronic scale; and

(vi) a box containing five measuring weights.

7. The following were found near to the defendant’s bed:

(i) one plastic bag containing item (ii);

(ii) three transparent resealable plastic bags each containing a crystalline solid which did not contain any substances controlled under the Dangerous Drugs Ordinance, Cap 134;

(iii) one electronic scale; and

(iv) a box containing three transparent resealable plastic bags.

8. Under caution, the defendant said that the two bags of “Ice” in the box were his and that the three bags of substance next to the bed were not “Ice” and were for curing athlete’s foot.

9. In the subsequent video-recorded interview, the defendant said under caution that:

(i) he lived in the apartment alone;

(ii) he was unemployed;

(iii) he had been a drug addict for a few months;

(iv) the transparent plastic bag found on him and the further two bags inside the plastic box found in his bedroom were “Ice” and were purchased from a person called “Ah Suk” after the defendant called “Ah Suk” and “Ah Suk” brought the drugs to the apartment. They cost him $500. The defendant then divided the “Ice” (which was originally in one bag) into smaller packets;

(v) the empty plastic bags, the electronic scale and the box of measuring weights found in the plastic box belonged to him. The empty plastic bags were for storing dangerous drugs. The scale was for weighing dangerous drugs. The measuring weights were for checking the accuracy of the scale;

(vi) the scale found next to the bed was for weighing the substance for curing athlete’s foot;

(vii) the plastic bag found next to the bed were for containing the substance for curing athlete’s foot.

10. The estimated street value of the “Ice” seized is $3,172. 

11. At all material times, the defendant possessed the “Ice” for the purpose of trafficking.

The Defendant’s Personal Particulars

12. The defendant was born in Hong Kong on 25 June 1991.  He committed the offence while he was 23 years old.  He is still 23 years old.  He has received education in Hong Kong up to Form 7 level.  He was unemployed at the time of the offence.  He is single and lived alone in the subject premises before arrest.  He has a father who has lost working capacity and who lives in the mainland with his second wife and second family.  The defendant’s divorced mother and adult sister live away from the defendant.

13. The defendant has a criminal record in 2007 for theft, for which he received probation order for 12 months.

Mitigation

14. Miss Ma for the defendant has the following plea in mitigation.  The defendant pleaded guilty, showing remorse.  The drugs found were not of substantial quantity.  The defendant was brought up in Hong Kong in a troubled family where his parents always fought and argued with each other, culminating in divorce in 2003 when the defendant was 12.  Luckily, the defendant was a bright child and looked after himself and completed his A-levels.  Even after the divorce, the parents stayed to live in the same flat with the defendant and the situation between them did not improve. 

15. As a result, the defendant found it hard to stay home and mixed with undesirable peers.  He started abusing drugs when he was 16.  He even started taking “Ice” before his O-level exams.

16. The defendant did not appreciate the consequences of abusing drugs.  He took it lightly and afforded himself the usual daily indulgence of taking drugs.  However, his drug addiction did not affect his excellence in maths and science.  In 2010, he completed his A-levels, but the grades were not good enough for university entry in Hong Kong.

17. Between 2010 and 2011, he helped out his father in the latter’s decoration work.  In 2011, his father suffered injuries to his arm and body parts, rendering him incapacitated.  Consequently, the defendant ceased to be a decoration worker.

18. With his good credentials and despite his conviction for theft, the defendant got into Hang Seng Bank as a trainee teller, earning $8,000 per month, and quickly made his way to becoming a teller and eventually a supervisor by 2013, making a monthly income of $16,000.

19. Thinking he could move into something bigger, he resigned in February 2014, hoping to develop elsewhere in the banking industry.  He then started taking a break.  He still had plenty of savings.

20. As regards his addiction history, he had no previous conviction for possession or trafficking.  He had a fun attitude to drugs.  He even took drugs to the bank for consumption.  He is a constant abuser of drugs, and he consumed a gramme a day whenever he felt like it.

21. He would not have committed the present offence had he realised the consequences.  He trafficked some of the drugs he bought in order to raise money just for the fun of it.  That is, he was not in financial difficulty.  He had been working non-stop since Form 7, and he had plenty of savings, and he had financial support from his father until 2011.  The defendant had been self-supporting since 2011.  He spent $2000-odd on rent monthly, and several thousand as other expenses.  He saved some money; the rest he spent on drugs.  The defendant is immature and naïve.

22. The tariff for the whole amount of drugs is 3 to 7 years’ imprisonment. 

23. He co-operated with the police and made full admissions when first apprehended and at the police station. 

24. He admits that he trafficked in all the drugs that he took out that day, ie 3.46 grammes of “Ice”. 

25. The drugs found in his home, he had them for self consumption.  They will last him for three days at the rate of 1 gramme per day.

26. Miss Ma submitted an album of photographs prepared by the police and asked the court to look at photo 4 (for bottles on desk); photos 6 and 7 (for lighters and bottles on desk); and photo 5 (for a roll of tinfoil), which Miss Ma submitted are paraphernalia for “Ice” consumption.

27. Miss Ma submitted that the defendant had had seven years of addiction, and that the drugs that were intended for self consumption were not of substantial quantity.  As for the items listed in the set of facts admitted by the defendant, Miss Ma submitted that the scale and the measuring weights as well as the plastic bag were instruments for use by the defendant to divide the drugs and package some of it for transit to his grandma’s or friend’s home for self consumption.

28. Miss Ma asked the court to accept that the defendant was a hardcore addict and asked for additional discount over and above the one-third discount for a plea of guilty. 

29. Regarding the theft conviction, Miss Ma submitted that the defendant was, at that time, aged 16 years 4 months, and stole a shuttlecock from a government recreational playground out of fun. 

30. Finally, Miss Ma asked that the defendant be treated as a person of previous good character.

Sentence and the Reasons for Sentence

31. I have considered the authorities submitted by the prosecution, namely AG v Ching Kwok Hung [1991] 2 HKLR 125 and HKSAR v Wong Suet Hau [2002] 1 HKLRD 69; and the authorities submitted by the defence, namely HKSAR v Cheuk Kin Man CACC 294/2009 and HKSAR v Chow Chun Sang CACC 135/2011.  I have also considered the authority of HKSAR v Capitania CACC 28/2004.

32. In this case, although the defendant has pleaded guilty to a charge involving a total of 7.70 grammes of “Ice”, he claims that 4.24 grammes, ie more than half of it, was for self consumption. 

33. I have examined the facts as admitted by the defendant, in particular, the admissions he made both at the scene and later at the police station.  He admitted he took the drugs out to see whether anyone wanted it, so as to earn money.  He admitted he was unemployed and he had been a drug addict for only a few months. 

34. Furthermore, his home was littered with a large collection of 200 empty plastic bags of various sizes, not to mention the presence of electronic scale and measuring weights.

35. It was admitted that the street value of all the drugs in this case was $3,172. 

36. There is a lack of criminal records relating to possession of drugs or apparatus for taking drugs.

37. With the above factors being viewed in isolation, it is not an overstatement to say that the defendant’s home was a packaging centre for the purpose of trafficking in a dangerous drug. 

38. Contrast the above preliminary conclusion with the defendant’s claims that he had been a drug addict for seven years; was a hardcore addict at the time of the offence; and was not in financial difficulties; and was merely trafficking for fun (in itself an outrageous claim given the defendant was brought up in Hong Kong). 

39. The photos as highlighted by the defence do not add much to the bald assertion by defence counsel that more than half of the drugs found were for the defendant’s own consumption.  The photos merely show the presence of ordinary plastic bottles and lighters (together with a packet of cigarettes nearby).

40. As for the claim of the presence of a roll of tinfoil, the court could not discern what that yellow box was, even with the assistance of a piece of magnifying glass. 

41. It therefore should not be seen as a surprise when the court inform the defence that the claim that part (not to mention a large part) of the drugs found was for self consumption (together with the associated claims) was unlikely to be accepted without some evidence from the defendant.

42. An adjournment was allowed for the purpose of Miss Ma taking instructions from the defendant.  In the result, the defendant elected not to call any (other) evidence.

43. The court therefore cannot accept that particular area of mitigation.

44. For trafficking in “Ice”, there are clear Court of Appeal sentencing guidelines.  For dealing in up to 10 grammes of the drug, the starting point should be 3 to 7 years’ imprisonment.

45. In the case of the defendant, who has trafficked in 7.70 grammes of “Ice”, I adopt a starting point of 5 years 9 months’ imprisonment.

46. The defendant pleaded guilty, showing a degree of remorse.  I will give him the full one-third discount.

47. There is no other valid mitigating factor.

48. Defendant, please stand.  The defendant will therefore go to prison for 3 years 10 months.