HKSAR v. YEUNG YUK MING

HCCC 255/2018

[2019] HKCFI 1173

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 255 OF 2018

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

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COURT:

Defendant, on 13 August 2018, you pleaded guilty to two charges of trafficking in dangerous drugs before a magistrate. As a result of your pleas of guilty, you were committed to the Court of First Instance for sentence.

Defendant, you admitted that on 9 September 2017, at House 58, Fuk Hing Tsuen, Fuk Hi Street, Yuen Long, New Territories, you committed these two charges of trafficking. The 1st charge relates to you trafficking in 30.409 kilogrammes of cannabis in herbal form which was contained in 122 plastic bags. The 2nd charge relates to you trafficking in 57.6 grammes of a solid containing 38 grammes of cocaine.

In the morning of 9 September 2017, police officers armed with a search warrant went to your house at House 58, Fuk Hing Tsuen. When officers demanded entry into the house, there was no response. Officers then gave a warning for forceful entry after which you opened the door of the house from the inside.

Upon entry, there were two rooms. One was locked and the other one, which was unlocked, your daughter and your girlfriend were found inside. The locked room was opened using a key by you and it looked like a storeroom. Search of the storeroom found the 122 plastic bags of herbal cannabis in three large bags, the amount being that as stated in Charge 1. Further, a paper box containing three plastic bags of cocaine was found. That is the quantity in Charge 2.

Upon discovery of the herbal cannabis, you were arrested and cautioned for trafficking in dangerous drugs of which you said: “I am keeping those three large bags of cannabis flower for others and I would charge 500 for every two packets as remuneration”.

Upon discovery of the cocaine, you were arrested and cautioned and you claimed the cocaine was for your own consumption. Before me today, that is no longer your claim.

Two video-recorded interviews were taken from you under caution. The reason you say you committed this offence was because you had lost money in a trading business and you needed to repay a debt of $110,000. This person called “Ah Fei” or “Fei Chai”, I think it is, had repaid this debt for you and in return and to repay him, he had got you involved in trafficking in this cannabis.

You were told by Ah Fei that the cannabis would be arriving early on 9 September, that very morning that you were arrested. That early morning you went to a pier at Sam Shing Estate in Tuen Mun, and at about 6 am, three males were waiting for you at the pier and they had put the three large bags of cannabis into a GoGoVan you had rented. You then took the cannabis back home and placed them in your storeroom. You had opened one of the bags to check and saw that there was cannabis there. A person was to come to take the drugs from you later that day at about 11 am. You were, however, arrested before that time.

You told the police you knew that about 30 kilogrammes of drugs would come from the mainland into Hong Kong and that anything more than that you would not be able to move them.

The estimated street value of the herbal cannabis seized was approximately $6,781,207 and the estimated street value of the cocaine was $52,992. The total value of all the drugs that is in Charge 1 and 2 was therefore $6,834,199.

After arrest, you were tested negative for cocaine and cannabis in a urine sample which was collected on 12 September 2017.

Defendant, you are now 45 years of age. You have 37 previous convictions. Four of them are for possession of dangerous drugs. The last conviction for possession of dangerous drugs was in 2011 to which you were sentenced to 10 months’ imprisonment, and that was in a case before the District Court to which the drug involved was that of ketamine.

You have three similar convictions of trafficking in dangerous drugs. The first was committed in 2008 to which you were sentenced to 9 months’ imprisonment. The other two, you were sentenced on the same day that is in 2013. You were sentenced to 5 years’ imprisonment on each charge. However, the total sentence served at that time by you for those two convictions was 6 years. Your date of your last discharge from prison was 7 October 2016. So within a year, you were trafficking again, defendant.

Defendant, you are single, however live with your girlfriend who is the mother of your daughter who is 4 years old. They are both present in court today.

Defendant, you have trafficked in two different types of drugs. The drugs are that of herbal cannabis and cocaine. The guideline case for trafficking in cannabis resin is Tuen Shui Ming. For amounts over 9 kilogrammes, the sentence is one of over 4 years’ imprisonment.

The Court of Appeal in HKSAR v Touray Edrisa, CACC 124 of 2010 confirmed a sentence of 6 years’ imprisonment on a defendant trafficking in 30.20 kilogrammes of cannabis in herbal form as a starting point. The amount of herbal cannabis in that case is similar to that that you have trafficked in today. In that case, the court also held that the defendant had imported the drugs. In this case, defendant, you have also imported the drugs from China. You knew that Ah Fei was sending the drugs from China and you had gone to the pier to collect the drugs. In those circumstances, defendant, given that the quantity is the same and the Court of Appeal has endorsed that quantity of drugs, I adopt the same starting point of 6 years’ imprisonment.

In sentencing you for these two offences, I take a combined approach, and in doing so, I will apply the conversion test and convert the cannabis to that of cocaine so that a single tariff for one drug can be applied to the entire quantity that you have pleaded guilty to. 30 kilogrammes of cannabis amounts to approximately 26 grammes of cocaine upon conversion. In adding that to Charge 2, which is 38 grammes of cocaine, that would equate to a total cocaine of 64 grammes.

The guideline case for trafficking in cocaine is that of Lau Tak Ming. For amounts between 50 and 200 grammes, the appropriate starting point is one between 8 and 12 years’ imprisonment. Had you been convicted after trial for trafficking in 64 grammes of cocaine, I would have taken a starting point of 8 years and 3 months’ imprisonment.

Defendant, there is an aggravating factor in this case in that you have three previous convictions for trafficking and your last two offences of trafficking were in 2013, and as I mentioned, you committed this offence within one year of you being released from prison.

In those circumstances, the starting point shall be enhanced because of that aggravating factor and I shall take a starting point of 8 years and 9 months’ imprisonment.

Defendant, you have pleaded guilty to the charge at the first opportunity and therefore you shall be awarded a full one-third discount. You shall be sentenced to 5 years and 10 months’ imprisonment.

Defendant, I shall now sentence you individually for the two offences. On Charge 1, I would have taken a starting point of 6 years’ imprisonment. Giving you full credit for your plea of guilty, that term shall be reduced to one of 4 years’ imprisonment. On Charge 2, you were trafficking in 38 grammes of cocaine, and following the guideline case of Lau Tak Ming, had you been convicted after trial, I would have taken a starting point of 7 years’ imprisonment. Giving you full credit for your plea of guilty, I shall reduce that term to 4 years and 8 months’ imprisonment.

To reflect the term of 5 years and 10 months’ imprisonment, I order 1 year and 10 months of Charge 2 to run consecutive to Charge 1 and the remainder to run concurrent.