HKSAR v. YAU HEI LUNG

HCCC 115/2019

[2020] HKCFI 111

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 115 OF 2019

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

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

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

Transcript of the Audio Recording
of the Sentence in the above Case

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

COURT:

Yau Hei-lung, you pleaded guilty in the Eastern Magistrates’ Court on 1 April 2019 to two counts of trafficking in dangerous drugs, contrary to section 4(1)(a) of the Dangerous Drugs Ordinance, Cap 134, in that you have accepted that you trafficked in a total of 900.6 grammes of ketamine altogether and you have confirmed that plea again today.

The facts of your offending have been reduced to a statement of facts which have been read out in court and to which you have agreed. You were found to be in possession of 756 grammes of ketamine within a paper bag you were carrying on the 28th Floor of Shin King House in the Fu Shin Estate, Tai Po on 18 April 2018. You were charged under Count 1 with the trafficking in dangerous drugs in that amount. During a search of your flat which was on the same floor, the police recovered a further 144.6 grammes of ketamine. Those are the dangerous drugs which form the substance of Count 2.

The most telling evidence was the fact that the dangerous drugs found in the paper bag was separated into four further bags, and that the ketamine found in your flat was separated into a further six plastic bags. There were also three electronic scales, a sealing machine and bundles of empty resealable plastic bags. This was not a one-off enterprise and you were not simply a courier.

At the time of arrest, you suggested that the drugs were for your own consumption, and I gave you the opportunity, Mr Yau, to expand upon that submission but you did not wish to do so. I am not prepared to take any part of what was found in your possession as drugs which you were to consume. That is because you were found to be in possession of not one but three sets of electronic scales, a significant quantity of resealable plastic bags and a sealing machine. There was also $31,200 in cash found in the flat when the dangerous drugs were recovered despite the fact that you were no longer in receipt of a salary. All of that leads me to believe that you were in the business of trafficking in dangerous drugs.

The street value of the drugs at the time was approximately $631,688.

It appears that, having lost you job through no fault of your own, you were attempting to make a living out of dealing in ketamine. You are only 29 years of age and have held down a permanent job as a delivery driver for some six years prior to offending. I am told you had been warned that you would lose your job unless your boss could find a new contract. I am also told that you received your last salary cheque just a month before this offending. I note that you were lucky to receive some $20,000 to $23,000 a month up to that point and you paid something like $6,000 out of it to your mother for your living expenses as you lived with her at the time.

I also note you are of previous good character and I have listened to everything Ms So has said on your behalf including your family circumstances. I have read the letters in support, including those from your mother and your employer. Your mother has been unwell for a number of years and I accept that you are ashamed of what has happened and the effect that it will have upon her. I also note that you were a valued employee and your boss thinks highly of you. But none of that excuses what you have done and the fact that you have put your own mother at risk of prosecution, given that you were operating out of your family home. But it does indicate that you are someone that is truly remorseful for what he has done. These are, nevertheless, serious matters, Mr Yau, it has been said by the Court of Appeal on many occasions that there is little personal mitigation which can reduce the sentence which the court must ordinarily pass. Others must be deterred from following suit.

For trafficking in ketamine, the sentencing guidelines after trial are set out in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1. For between 600 and 1,000 grammes, the starting point after trial is 12 to 14 years. For trafficking in 756 grammes of ketamine under Count 1, the starting point after trial is therefore 12 years and 9 months. For trafficking in dangerous drugs between 50 and 300 grammes, the starting point is 6 to 9 years and therefore for trafficking in 144.6 grammes of ketamine under Count 2, the starting point after trial is 7 years and 3 months. That would make a total sentence after trial at 20 years. But if this had been one count before the court, then the total would be 900.6 grammes and the starting point after trial would have been 13 years and 6 months.

You also attempted to assist the authorities, although that came to nothing in the end. It further substantiates, however, the submission of Ms So that you wish to make amends for the wrong that you have done. You have pleaded guilty at the first opportunity. That is to your credit. And I would give you, in any event, the one-third discount for those pleas. But you are also entitled to a slight, albeit a slight, enhancement for your attempt to assist, although they were unable to result in a prosecution.

On Count 1, you will go to prison for 8 years and 6 months. Under Count 2, you will go to prison for 4 years and 10 months but all of that you will serve concurrently with the sentence under Count 1. So you will therefore go to prison for 8 years and 6 months.