HCCC340/2023 HKSAR v. YIP CHOI MAN AND ANOTHER - LawHero
HCCC340/2023
HKSAR v. YIP CHOI MAN AND ANOTHER
高等法院（刑事）DHCJ Eric Kwok, SC22/4/2025[2025] HKCFI 2137
HCCC340/2023
A A
HCCC 340/2023
[2025] HKCFI 2137
B IN THE HIGH COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
C CRIMINAL CASE NO 340 OF 2023 C
D
----------------- D
HKSAR
E E
v
F Yip Choi-Man (A1) F
Ng Wing-Yi (A2)
G G
-----------------
H Before: DHCJ Eric Kwok, SC H
Date: 23 April 2025 at 2.30 pm
Present: Mr Lau Tak-wai Derek, SADPP of the Department of
I Justice, for HKSAR I
Mr Wong Wing-chi Stephen, instructed by Kwok, Ng &
J Chan, assigned by DLA, for the 1st accused J
Mr Lau Chung-man Clement, instructed by H Y Leung & Co
LLP, assigned by DLA, for the 2nd accused
K Offence: (1) Trafficking in a dangerous drug (販運危險藥物) K
(2) Dangerous driving (危險駕駛)(against A1)
L (3) Driving a motor vehicle with any concentration of L
specified illicit drug (在體內含有任何濃度的指明毒品時駕
駛汽車)(against A1)
M (4) Wilfully obstruction police officers in the due M
execution of their duty (故意阻撓在正當執行職務的警務人
N 員)(against A1) N
O --------------------------------- O
Transcript of the Audio Recording
of the Sentence in the above Case
P --------------------------------- P
COURT: There are a total of four counts in the indictment. The
Q Q
1st count charged both defendants jointly with trafficking
in a dangerous drug. The particulars of which are that both
R defendants on the 22 March 2022 together with other person R
or persons unknown unlawfully trafficked 1.734 kilogrammes
of a mixture containing 1.441 kilogrammes of heroin
S hydrochloride. S
T The 2nd to the 4th counts charged against the 1st defendant T
(D1) only and alleged against him on the same day, drove
dangerously, drove while a concentration of 0.01 microgramme
U of cocaine per millilitre of blood, as well as wilfully U
CRT11/23.4.2025/AWH 1 HCCC 340/2023(1)/Sentence
V V
A A
obstruct a number of police officers in the due execution of
their duty.
B B
Both defendants entered pleas of guilty to their respective
charges on the 26 October 2023 in the Eastern Magistrates’
C Court during committal proceedings. They were accordingly C
committed to the Court of First Instance for sentence.
D D
The Summary of Facts admitted by the defendants are as
follows:-
E E
On the morning of 22 March 2022, a team of police officers
led by Sergeant 5111 (PW12) mounted an anti-narcotics
F operation outside a village house at Block 59, No. 8 Wang F
Lung, Chuen Lung Village, Tsuen Wan (the “Premises”), which
G was a two-storey house. At all material times, the 2nd G
defendant (D2) was the sole tenant of a room on the lower
storey of the premises.
H H
At about 1110 hours on the same day, PC26295 (PW10) spotted
a private car driven by the 1st defendant with registration
I number UU3541 (the “Private Car”) entering the premises. I
PW10 saw D2 opening the gate of the premises for the private
J car to enter. J
At about 1142 hours on the same day, PW10 saw D1 leaving the
K premises by the private car. Having been informed by PW10 K
of the 1st defendant’s departure, PW12 instructed PC26158
(PW9), who was driving an unmarked police vehicle (V1) with
L L
PC27649 (PW13) and PC27933 (PW14) and PC26115 (PW15) on
board, to drive V1 to the outside of Chuen Lung Village
M Office where they would wait for the arrival of the private M
car.
N At about 1147 hours on the same day, when the private car N
arrived at Choi Lung Restaurant heading towards Chuen Lung
Village Office, PW9 drove V1 slowly towards the private car.
O O
Seeing the oncoming V1, D1 drove the private car backwards
into a lay-by. PW9 continued to drive forward and
P eventually stopped V1 before the private car. All PW9, P
PW13, PW14 and PW15 then alighted V1. At this juncture,
PW12, who had been conducting surveillance outside Choi Lung
Q Restaurant, joined the other police officers. Q
PW12 declared his police identity and demanded D1 to alight
R R
the private car. PW9, PW13 and PW14 also declared their
police identities and warned D1 to alight. Nevertheless, D1
S ignored repeated warnings of the police officers and S
suddenly pulled out the private car which hit V1 and a
private car “RU7883” (“V2”) parked in its front. V2 in turn
T hit on another private car “RF5605” (“V3”) parked behind it. T
As the private car suddenly accelerated, the front part of
U
the private car hit PW12’s right little finger, while the U
side mirror of the private car hit PW13’s right thumb.
CRT11/23.4.2025/AWH 2 HCCC 340/2023(1)/Sentence
V V
A A
In an attempt to drive through V1 and V2, which were
blocking its way, D1 drove the private car back and forth to
B bump the vehicles away and eventually managed to drive the B
private car away through a gap. The private car collided
with another private vehicle “UB4719” (“V4”) parked on the
C road during its flight. C
D
As D1 continued to drive forward at a high speed towards the D
entrance of Chuen Lung Village, it collided head-on with
another private car “DV3348” (“V5”) just entering the
E village. D1 lost control of the private car which crashed E
into a kerb and overturned. The private car continued to
slide forward after it had overturned, and hit another
F private car “TB3160” (“V6”) travelling on the road. F
G At the material time, D1 drove the private car on the road G
dangerously. As a result of the dangerous driving by D1:
H (1) the left side of V1 was seriously damaged, the H
left and the rear windows of V1 were smashed;
I (2) the rear and front bumpers of V2 were damaged; I
J (3) the rear bumper of V3 was damaged; J
(4) the rear bumper of V4 was damaged;
K K
(5) the front part of V5 including its front bumper
and front lights, were seriously damaged, the
L L
windscreen of V5 was smashed and the vehicle could
no longer be operated. The driver of V5 (PW4) was
M diagnosed as suffering with mild neck tenderness, M
left wrist tenderness with swelling and limited
active range of movement and hand grip power, left
N thumb flexion pain, as well as lower back mild N
tenderness. PW4 was admitted to the orthopaedic
ward of Yan Chai Hospital for treatment; and
O O
(6) The front part of V6 including its front bumper
P was seriously damaged. P
By refusing to alight, and driving the private car away in
Q spite of the repeated warnings issued by the police, D1 Q
wilfully obstructed police officers, including PW9, PW12,
PW13 and PW14 in the due execution of their duty.
R R
After the private car had come to a halt, D1 climbed out
S from the private car and was subdued by police officers. D1 S
suffered mild injuries and was subsequently conveyed to Yan
Chai Hospital for medical treatment.
T T
At about 1514 hours on the same day, a specimen of blood was
U
taken from D1 by Dr Chan Ka-wing, a medical practitioner of U
Yan Chai Hospital, for analysis. Upon examination by
CRT11/23.4.2025/AWH 3 HCCC 340/2023(1)/Sentence
V V
A A
government chemist, it was confirmed that a concentration of
a specified illicit drug, namely 0.01 microgram of cocaine
B per millilitre of blood, was present in D1’s specimen of B
blood.
C At the material time, D1 drove the private car on a road C
while a concentration of a specified illicit drug was
D
present in his blood. D
At about 1156 hours on 22 March 2022, immediately after D1
E had climbed out from the private car, a search of the E
private car was conducted by PC25440 (PW11) in the presence
of D1. PW11 found a “SASA” plastic bag (the “SASA Bag”)
F inside the private car, in which five bricks of dangerous F
drugs (the “Drugs”) were found.
G G
The Drugs were subsequently confirmed by government chemist
to be totally 1.734 kilogrammes of a mixture containing
H 1.441 kilogrammes of heroin hydrochloride (a salt of H
heroin). The estimated street value of the Drugs as of
March 2022 was HK$1,786,020.
I I
At about 1210 hours on 22 March 2022, D1 was arrested by
J PW9. When cautioned at the time of the arrest, D1 stated J
that the Drugs were heroin which were given to him by D2,
who offered him a reward of $7,500 for delivering the Drugs.
K D1 stated that he attempted to drive the private car away K
because he did not want to be arrested.
L L
In three cautioned video-recorded interviews conducted on 22
March 2022 and 23 March 2022, D1 stated, inter alia, the
M following: M
(1) D2 was his secondary schoolmate, and he had been
N communicating with D2 via WhatsApp; N
(2) On the night before the arrest, he received
O O
WhatsApp messages from D2 who asked if he would
like to take up the job of delivering heroin. As
P he was in need of money for repaying his debts, he P
agreed to help with the delivery, and he was
promised a reward of $7,500 by D2;
Q Q
(3) He was told by D2 via WhatsApp that altogether
five bricks of heroin needed to be delivered. He
R R
was asked by D2 to visit the premises on the
morning of the following day, ie 22 March 2022,
S when the Drugs would be passed to him for delivery S
to another person who would phone him in due
course. He was further asked by D2 to buy some
T cat food and lunchboxes to the premises; T
U U
CRT11/23.4.2025/AWH 4 HCCC 340/2023(1)/Sentence
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A A
(4) After he had arrived at the premises, D2 led him
enter her room where they had meal together.
B Afterwards, D2 left the room for a while. When D2 B
returned, she told him that she had already placed
a bag containing the Drugs inside the trunk of the
C private car; and C
D
(5) He remained at the premises until he received a D
phone call from a person who told him to bring the
Drugs to Kwai Chung Container Terminals. He then
E left the premises by the private car. Before he E
departed, D2 opened the trunk of the private car
and told him that the drugs were contained in the
F SASA bag. D2 then took the cat food, which he F
bought for her, from the trunk and returned to the
G premises. G
D1 voluntarily provided the password of his mobile phone to
H the police. Upon inspection of D1’s mobile phone, the H
police found WhatsApp messages sent by D2 to D1 recruiting
D1 to the job of delivering five bricks of “Sei Jai 四仔”
I I
and asking D1 to go the premises on the 22 March 2022.
J According to the drug expert of the Narcotics Bureau of the J
police, “Sei Jai 四仔” is a term commonly used in the
illicit drugs subculture in Hong Kong referring to heroin.
K K
The dashcam of the private car was seized by the police.
L The relevant footage showed that about 1115 hours on 22 L
March 2022, D2 placed the SASA bag containing the Drugs into
the trunk of the private car.
M M
On the afternoon of 22 March 2022, the police went to the
premises to look for D2 but found that D2 was missing. Upon
N N
a review of the CCTV recordings in the area of Chuen Lung
Village, the police discovered that D2 had left the premises
O at about 1300 hours on 22 March 2022. She had not returned O
to the premises since then.
P On 26 March 2022, the police located D2 in a hotel room at P
InterContinental Grand Standford Hong Kong Hotel in Tsim Sha
Tsui. D2 was arrested by DPC11303 (PW17).
Q Q
Save admitting that she resided at the premises, and that
R her phone number was “6077 7515”, D2 refused to answer any R
other question in the cautioned video-recorded interview.
S Both the 1st and the 2nd defendant now accept and admit that S
at the material time they possessed the Drugs for the
purpose of unlawful trafficking. D2 recruited D1 to help
T T
deliver the Drugs and placed the SASA bag containing the
Drugs into the private car driven by D1. D1 then helped to
U deliver the Drugs to other people according to D2’s U
instructions.
CRT11/23.4.2025/AWH 5 HCCC 340/2023(1)/Sentence
V V
A A
On 5 March 2025, the Court of Appeal, in the case of HKSAR v
Huang Ruifang, 黃瑞芳, CACC 106/2022, set down new guidelines
B for sentencing in trafficking in heroin, in particular, for B
quantity between 500 grammes to 1.5 kilogrammes, the
sentence range is 16 to 20 years.
C C
Section 37 subsection (1)(a) of the Road Traffic Ordinance
D provides that the maximum for dangerous driving is D
imprisonment for 3 years.
E Section 37 subsection (2) and subsection (2)(a) of Road E
Traffic Ordinance provides that the minimum disqualification
is one of 6 months. However, section 37 subsection (2)(d)
F F
provides that the maximum term of imprisonment and minimum
disqualification are each increased by 50 per cent if the
G dangerous driving was committed in circumstances of G
aggravation. It is further provided in section 37
subsection (2)(e) that one of the circumstances of
H aggravation is any concentration of a specified illicit drug H
is present in the offender’s blood.
I I
Section 39K of Road Traffic Ordinance provides that driving
while any concentration of a specified illicit drug the
J maximum term of imprisonment is 3 years, and the minimum J
disqualification provided in subsection (2) and (3) is one
of 2 years.
K K
For wilfully obstructing police officer under section 36B of
the Offences against the Person Ordinance, the maximum term
L L
of imprisonment is one of 2 years.
M D1 is now aged 40 years old. He was born in Hong Kong and M
was educated to Form 5. He is single and was a part-time
taxi driver when these offences were committed. He had one
N previous conviction in connection with infringing copies of N
copyright works in 2003. It is submitted, on his behalf,
O that he agreed to deliver the drugs as he need money to pay O
debts. It is also submitted, on his behalf, that he was not
a drug addict and he took cocaine the night before the
P commission of the offences in order to release his stress. P
I will not take into account of his previous conviction,
Q which is nearly 20 years ago when he committed the present Q
offence, and it is not related to dangerous drugs. On the
R other hand, there is nothing unusual in his background which R
amounts to any mitigating factor. The only mitigation in
his case is his plea of guilty and assistance to police in
S his non-prejudicial statement. S
On 16 May 2023, he gave an NPS against D2. The information
T T
provided in the NPS are similar to what he had said in the
caution interviews and supported by the WhatsApp messages
U found in his mobile phone. However, these information have U
CRT11/23.4.2025/AWH 6 HCCC 340/2023(1)/Sentence
V V
A A
nothing to do with the arrest nor prosecution of D2 as there
are sufficient evidence against D2. As a result, the
B information he provided only constitutes useful intelligence B
to the authorities and it is to that extent considered to be
of practical use to the authorities.
C C
I noted from the record of proceedings that on 29 June 2023,
D
D2 indicated her plea of guilty while D1 asked for D
adjournment to negotiate with Department of Justice. 29
June 2023 is the fifth return day.
E E
On 10 August 2023, the sixth return day, the 1st defendant
asked for further time to consider his plea as plea bargain
F with Department of Justice was unsuccessful. D2 maintained F
her indication of plea of guilty.
G G
On 26 October 2023, the seventh return day, both defendants
entered formal pleas of guilty to their respective charges.
H H
In R v Yan Im Kun [1997] 4 HKC 339, Bokhary JA as he then
was, said, quote:
I I
“Where there is more than one accused, that each of
J them should have an incentive to be the first to plead J
guilty and offer to give evidence against the other or
others is a very good thing. Whatever may be said
K about the rat race, the courts should give criminals K
every incentive to enter a race to rat, so to speak.”
L L
In D1’s letter to court directly, he said he had written to
Department of Justice on two occasions but no reply from
M Department of Justice. From the record of court M
proceedings, it seems those acting for D1 had also written
to Department of Justice, however I do not have any of those
N written representations. I do not know what D1 was offering N
or asking in return for his NPS. I asked Mr Wong, counsel
for D1, to take instructions on disclosure of those
O O
communications with Department of Justice to me so that I
can in a better position to assess the credit that I should
P give for his assistance to authority. My invitation for P
disclosure was declined.
Q In Lo Sze Tung Stephanie, CACC 190/2017, the Court of Appeal Q
said at paragraph 52, quote:
R R
“We should emphasise that it is the responsibility of
the defendant’s counsel to place before the judge all
S the information needed to enable the judge to make an S
assessment of the assistance...”
T In the same paragraph, the Court of Appeal said, quote: T
U
“We cannot emphasise enough that the judge’s assessment U
depends on what the judge is told by the defendant’s
CRT11/23.4.2025/AWH 7 HCCC 340/2023(1)/Sentence
V V
A A
counsel who is under a professional obligation to do
all that he can to advance his client’s interests. The
B less the judge is told the harder it will be for the B
judge to make an accurate and fair assessment. Counsel
must be in possession of all the facts and be in a
C position to assist the judge in any queries the judge C
may have.”
D D
Given the limited information I had, I assessed his
assistance is one of providing useful intelligence to
E authorities only. I am of the view that the discount I can E
give to D1 for his plea and assistance falls within the
range of one-third to 40 per cent. Given the assistance
F only constitutes useful intelligence and had nothing to do F
with the arrest nor prosecution of D2, I am only persuaded
G that I should give a discount of slightly more than one- G
third, and I adopt a 35 per cent.
H In HKSAR v Ilmayanti [2019] 4 HKLRD 1, the Court of Appeal H
gave a discount of 37 per cent to the assistance rendered by
the appellants as the true value of the appellants
I assistance lay in there being able to identify the recruiter I
so that he can be tracked down through investigation
J processes. J
In HKSAR v Lo Sze Tung Stephanie, CACC 190/2017, the Court
K of Appeal gave the appellant a discount of around 43.5 per K
cent for her assistance in not only the apprehension of the
co-accused, but also she would have given evidence for the
L L
prosecution had her co-accused not pleading guilty.
M Mr Wong, in his submission on behalf of the 1st defendant, M
made no reference to whether D1 was willing to testify for
the prosecution had D2 pleaded not guilty. He submitted
N that the 1st defendant, quote: N
“He made a general attempt to assist the authorities.
O O
His assistance have been helpful but, for one reason or
another, it is not assessed to be of particularly great
P value.” P
In the circumstances of this case, I am of the view that 35
Q per cent discount for D1’s plea and assistance is Q
appropriate.
R R
On the facts admitted, I found D1’s role is one of a
courier. For the quantities of drugs involved, I adopt an
S initial starting point of 19 years and 9 months. There is S
no aggravation nor mitigating circumstances. As said above,
I will give a 35 per cent discount for your plea and
T assistance. It came down to 154.05 months and I round it T
down to 12 years and 10 months.
U U
CRT11/23.4.2025/AWH 8 HCCC 340/2023(1)/Sentence
V V
A A
For the dangerous driving, a number of vehicles were
damaged, and two officers and one civilian got injured. It
B was also committed in circumstances of aggravation. I adopt B
a starting point of 3 years and 10 months. Giving you 35
per cent discount, and rounding it down, the sentence on the
C 2nd count is one of 30 months. That is 2 years and 6 C
months. You are disqualified for 9 months. I also order
D
you to attend and complete a driving improvement course D
pursuant to section 72A subsection (1)(a) of Road Traffic
Ordinance. Hence you are disqualified for 9 months or until
E you have attended and completed the course, whichever is the E
later. Furthermore, the disqualification only starts to run
after your release from prison.
F F
For the drug driving, I adopt a starting point of 1 year and
G 8 months in view of the relative small amount of drugs found G
in your blood. Giving you 35 per cent discount the sentence
on this count comes down to 13 months. That is 1 year and 1
H month. You are to be disqualified for 2 years and I also, H
likewise, order you to attend and complete a driving
improvement course.
I I
Finally, for the wilful obstruction, I adopt 3 months as the
J starting point. Giving you 35 per cent discount it comes J
down to 1.95 months.
K As I have already taken into consideration the aggravating K
circumstances in committing the dangerous driving, I order
that that the sentence on the 3rd count is to run
L L
concurrently with the 2nd count, that is to say you will go
to prison for 2 years and 6 months for both offences, and
M you are disqualified for 2 years or until you attend and M
complete a driving improvement course, whichever is the
later, and the disqualification starts to run after your
N release from prison. N
However, the sentence on these two offences are to run
O O
consecutively to the trafficking in dangerous drugs. That
makes a total of 15 years and 4 months. I am of the view
P that a total of 15 years and 4 months is a sufficient P
punishment to reflect your culpability on the day in
question. Therefore, I order the sentence on the wilful
Q obstruction to run concurrently with the 1st count. Q
For the avoidance of doubt, the total term of imprisonment I
R R
pass on you is one of 15 years and 4 months. In that, 12
years and 10 months for the 1st count. 2 years and 6 months
S for the 2nd count consecutive to the 1st count; 1 year and 1 S
month for the 3rd count concurrently with the 1st and the
2nd counts; 1.95 months for the 4th count concurrent with
T the 1st, 2nd and 3rd counts. T
U U
CRT11/23.4.2025/AWH 9 HCCC 340/2023(1)/Sentence
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A A
D2 is now 40 years old. She is single and educated up to
Form 5. She had a miscarriage in 2021 and, because of
B COVID, she was unemployed at the time of the offence. B
She had a previous conviction for possession of dangerous
C drugs and was sentenced to 2 years and 6 months by the Court C
of Appeal. She was convicted in the Court of First Instance
D
on the 15 August 2013. In fact, she was prosecuted for D
trafficking in about 200 grammes of ketamine but convicted
by jury of simple possession.
E E
It was submitted on her behalf that she was asking D1 to
return the Drugs to the boss as she wanted to withdraw
F herself from the joint enterprise of trafficking in F
dangerous drugs. If this is accepted by the prosecution, or
G substantiated, I will give her some discount. G
Mr Lau, for the prosecution, did not accept and I
H accordingly invited Mr Lau, for D2, to consider a Newton H
hearing. My invitation was declined.
I In the circumstances, I will not give any credit for her I
assertion that she was returning the Drugs to the boss. Her
J role is more than D1 in that she recruited D1 to make the J
delivery, as well as being the storekeeper of the Drugs in
question.
K K
I adopt an initial starting point of 20 years. For her
plea, I reduce it to 13 years and 4 months.
L L
She had a previous conviction relating to dangerous drugs
M and had been to prison for that. Though the previous M
conviction is some 8½ years ago, I am of the view that the
sentence has to be enhanced to deter you from committing
N dangerous drugs offence. I accordingly enhance the sentence N
by 6 months. The sentence now is one of 13 years and 10
months.
O O
Mr Lau, on your behalf, asked for a reduction of 3 months on
P account of your participation in Father Wotherspoon’s P
programme. I have before me a letter from Father John
Wotherspoon certifying D2,
Q Q
“...has greatly helped our campaign by submitting her
complicated and tragic story which we have used and
R R
will continue using. Her story describes her story of
problems with drugs, her health issues, and how she
S succumbed to drug trafficking to get quick money. The S
sad effects her detention have had on her family, her
study efforts while in detention, all as a warning to
T others not to make the same mistakes.” T
U U
CRT11/23.4.2025/AWH 10 HCCC 340/2023(1)/Sentence
V V
A A
I have also read her story titled “Radio Silence”.
B In HKSAR v Kilima Abubakar Abbas, CACC 143/2016, Lunn VP B
said in paragraphs 66 and 67, quote:
C “However, determining what, if any weight, ought to C
have been afforded the applicant in sentencing for his
D
participation in Father Wotherspoon’s programme is D
fraught with considerable difficulties. At most, the
applicant contributed to the simple message that Father
E Wotherspoon’s programme promulgated to Tanzanians, E
namely that very heavy sentences of imprisonment were
to be expected by those who unlawfully trafficked
F dangerous drugs into Hong Kong. He did not thereby F
expose himself to any danger. It is simply not known
G whether the decrease in the arrests in Hong Kong of G
Tanzanian drug traffickers, to which statistics
reference is made in the judgement of McWalters JA, is
H to be attributed in any way to the programme, let alone H
to the contribution of the applicant. The courts are
ill equipped to make enquiries to make any such
I determination. To do so exposes the court to the I
dangers of indulging in speculation. It is said by the
J Court of Appeal assessing the value, if any, to Hong J
Kong of an applicant’s participation in Father
Wotherspoon’s programme is a matter that the Executive
K is better equipped to perform.” K
Paragraph 67, quote:
L L
“Nevertheless, it lay within the judge’s discretion to
M afford the applicant a small additional discount in M
sentence to reflect this aspect of the applicant’s
conduct. The judge was entitled to afford the
N applicant a discount of 3 months’ imprisonment for this N
factor of mitigation. That level of discount of
sentence is to be regarded as the maximum discount to
O O
be afforded to an applicant in similar circumstances.”
P Macrae VP said in paragraph 91, quote: P
“This court, comprising both of my two colleagues on
Q this appeal, has already twice said that post-sentence Q
participation in Father Wotherspoon’s campaign is a
matter best left to the Executive. I consider that is
R R
right for the reasons they have given and that this
court should adhere to its earlier decisions on this
S matter. Nevertheless, I would still permit sentencing S
judges a discretion to allow a token discount for this
factor. Although such contributions to Father
T Wotherspoon’s campaign do not amount to either positive T
good character nor are they readily borne of remorse,
U
it seems to me that it may still be in the public U
CRT11/23.4.2025/AWH 11 HCCC 340/2023(1)/Sentence
V V
A A
interest to encourage a prisoner’s efforts in this
regard. That assessment must be in the absolute
B discretion of the court, an exercise with which this B
court will not lightly interfere, but I cannot for
myself envisage any circumstances which might warrant a
C deduction of more than 3 months for this factor.” C
D
McWalters JA, in paragraph 225 had this to say, quote: D
“In my view a court called upon to sentence a drug
E trafficker who seeks a sentencing discount for this E
form of assistance should first decide whether the
actual assistance provided, over the time it has been
F provided, enables him to confidently form the view that F
the defendant has contributed meaningfully to Father
G Wotherspoon’s campaign. If it is too early for the G
judge to confidently form such a view then he should
leave any sentencing discount to be subsequently
H assessed by the Executive.” H
Paragraph 226:
I I
“If the judge forms the view that the defendant has
J made a meaningful contribution to Father Wotherspoon’s J
campaign then he should reward the defendant for the
assistance he has provided to date.”
K K
Paragraph 227:
L L
“This will always be a matter of discretion for the
sentencing judge. In exercising that discretion the
M judge will take into account the nature and extent of M
the applicant’s participation in Father Wotherspoon’s
campaign, whether that participation has exposed him,
N or members of his family in his home country, to any N
risk of harm and the benefit that has flowed to Hong
Kong from the campaign. This is not intended as an
O O
exhaustive list of the relevant considerations.”
P Unlike the case of Kilima, D2’s participation in Father P
Wotherspoon’s programme was not aimed at broadcasting abroad
with the will to deter people from bringing drugs into Hong
Q Kong from abroad. D2’s story, which I have read, is just Q
like someone expressing her remorse and serves as a general
warning to others. I am not persuaded that D2’s
R R
participation had contributed meaningfully to Father
Wotherspoon’s campaign. I therefore would not accede to Mr
S Lau’s request of a 3 months’ discount. S
For the 1st count, I pass on the 2nd defendant a term of
T imprisonment for 13 years and 10 months. T
U U
CRT11/23.4.2025/AWH 12 HCCC 340/2023(1)/Sentence
V V
A A
For D1, the disqualification that I have earlier ordered
“starts to run after your release from prison” is deleted.
B So you are disqualified for 2 years, or after you have B
attend and complete a driving improvement course, whichever
is the later.
C C
D D
I/we certify that to the best of my/our ability
and skill, the foregoing is a true transcript of
E the audio recording of the above proceedings E
F F
..........................................
G Au Wing Han Millie G
Date: 28 April 2025
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT11/23.4.2025/AWH 13 HCCC 340/2023(1)/Sentence
V V
A A
HCCC 340/2023
[2025] HKCFI 2137
B IN THE HIGH COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
C CRIMINAL CASE NO 340 OF 2023 C
D
----------------- D
HKSAR
E E
v
F Yip Choi-Man (A1) F
Ng Wing-Yi (A2)
G G
-----------------
H Before: DHCJ Eric Kwok, SC H
Date: 23 April 2025 at 2.30 pm
Present: Mr Lau Tak-wai Derek, SADPP of the Department of
I Justice, for HKSAR I
Mr Wong Wing-chi Stephen, instructed by Kwok, Ng &
J Chan, assigned by DLA, for the 1st accused J
Mr Lau Chung-man Clement, instructed by H Y Leung & Co
LLP, assigned by DLA, for the 2nd accused
K Offence: (1) Trafficking in a dangerous drug (販運危險藥物) K
(2) Dangerous driving (危險駕駛)(against A1)
L (3) Driving a motor vehicle with any concentration of L
specified illicit drug (在體內含有任何濃度的指明毒品時駕
駛汽車)(against A1)
M (4) Wilfully obstruction police officers in the due M
execution of their duty (故意阻撓在正當執行職務的警務人
N 員)(against A1) N
O --------------------------------- O
Transcript of the Audio Recording
of the Sentence in the above Case
P --------------------------------- P
COURT: There are a total of four counts in the indictment. The
Q Q
1st count charged both defendants jointly with trafficking
in a dangerous drug. The particulars of which are that both
R defendants on the 22 March 2022 together with other person R
or persons unknown unlawfully trafficked 1.734 kilogrammes
of a mixture containing 1.441 kilogrammes of heroin
S hydrochloride. S
T The 2nd to the 4th counts charged against the 1st defendant T
(D1) only and alleged against him on the same day, drove
dangerously, drove while a concentration of 0.01 microgramme
U of cocaine per millilitre of blood, as well as wilfully U
CRT11/23.4.2025/AWH 1 HCCC 340/2023(1)/Sentence
V V
A A
obstruct a number of police officers in the due execution of
their duty.
B B
Both defendants entered pleas of guilty to their respective
charges on the 26 October 2023 in the Eastern Magistrates’
C Court during committal proceedings. They were accordingly C
committed to the Court of First Instance for sentence.
D D
The Summary of Facts admitted by the defendants are as
follows:-
E E
On the morning of 22 March 2022, a team of police officers
led by Sergeant 5111 (PW12) mounted an anti-narcotics
F operation outside a village house at Block 59, No. 8 Wang F
Lung, Chuen Lung Village, Tsuen Wan (the “Premises”), which
G was a two-storey house. At all material times, the 2nd G
defendant (D2) was the sole tenant of a room on the lower
storey of the premises.
H H
At about 1110 hours on the same day, PC26295 (PW10) spotted
a private car driven by the 1st defendant with registration
I number UU3541 (the “Private Car”) entering the premises. I
PW10 saw D2 opening the gate of the premises for the private
J car to enter. J
At about 1142 hours on the same day, PW10 saw D1 leaving the
K premises by the private car. Having been informed by PW10 K
of the 1st defendant’s departure, PW12 instructed PC26158
(PW9), who was driving an unmarked police vehicle (V1) with
L L
PC27649 (PW13) and PC27933 (PW14) and PC26115 (PW15) on
board, to drive V1 to the outside of Chuen Lung Village
M Office where they would wait for the arrival of the private M
car.
N At about 1147 hours on the same day, when the private car N
arrived at Choi Lung Restaurant heading towards Chuen Lung
Village Office, PW9 drove V1 slowly towards the private car.
O O
Seeing the oncoming V1, D1 drove the private car backwards
into a lay-by. PW9 continued to drive forward and
P eventually stopped V1 before the private car. All PW9, P
PW13, PW14 and PW15 then alighted V1. At this juncture,
PW12, who had been conducting surveillance outside Choi Lung
Q Restaurant, joined the other police officers. Q
PW12 declared his police identity and demanded D1 to alight
R R
the private car. PW9, PW13 and PW14 also declared their
police identities and warned D1 to alight. Nevertheless, D1
S ignored repeated warnings of the police officers and S
suddenly pulled out the private car which hit V1 and a
private car “RU7883” (“V2”) parked in its front. V2 in turn
T hit on another private car “RF5605” (“V3”) parked behind it. T
As the private car suddenly accelerated, the front part of
U
the private car hit PW12’s right little finger, while the U
side mirror of the private car hit PW13’s right thumb.
CRT11/23.4.2025/AWH 2 HCCC 340/2023(1)/Sentence
V V
A A
In an attempt to drive through V1 and V2, which were
blocking its way, D1 drove the private car back and forth to
B bump the vehicles away and eventually managed to drive the B
private car away through a gap. The private car collided
with another private vehicle “UB4719” (“V4”) parked on the
C road during its flight. C
D
As D1 continued to drive forward at a high speed towards the D
entrance of Chuen Lung Village, it collided head-on with
another private car “DV3348” (“V5”) just entering the
E village. D1 lost control of the private car which crashed E
into a kerb and overturned. The private car continued to
slide forward after it had overturned, and hit another
F private car “TB3160” (“V6”) travelling on the road. F
G At the material time, D1 drove the private car on the road G
dangerously. As a result of the dangerous driving by D1:
H (1) the left side of V1 was seriously damaged, the H
left and the rear windows of V1 were smashed;
I (2) the rear and front bumpers of V2 were damaged; I
J (3) the rear bumper of V3 was damaged; J
(4) the rear bumper of V4 was damaged;
K K
(5) the front part of V5 including its front bumper
and front lights, were seriously damaged, the
L L
windscreen of V5 was smashed and the vehicle could
no longer be operated. The driver of V5 (PW4) was
M diagnosed as suffering with mild neck tenderness, M
left wrist tenderness with swelling and limited
active range of movement and hand grip power, left
N thumb flexion pain, as well as lower back mild N
tenderness. PW4 was admitted to the orthopaedic
ward of Yan Chai Hospital for treatment; and
O O
(6) The front part of V6 including its front bumper
P was seriously damaged. P
By refusing to alight, and driving the private car away in
Q spite of the repeated warnings issued by the police, D1 Q
wilfully obstructed police officers, including PW9, PW12,
PW13 and PW14 in the due execution of their duty.
R R
After the private car had come to a halt, D1 climbed out
S from the private car and was subdued by police officers. D1 S
suffered mild injuries and was subsequently conveyed to Yan
Chai Hospital for medical treatment.
T T
At about 1514 hours on the same day, a specimen of blood was
U
taken from D1 by Dr Chan Ka-wing, a medical practitioner of U
Yan Chai Hospital, for analysis. Upon examination by
CRT11/23.4.2025/AWH 3 HCCC 340/2023(1)/Sentence
V V
A A
government chemist, it was confirmed that a concentration of
a specified illicit drug, namely 0.01 microgram of cocaine
B per millilitre of blood, was present in D1’s specimen of B
blood.
C At the material time, D1 drove the private car on a road C
while a concentration of a specified illicit drug was
D
present in his blood. D
At about 1156 hours on 22 March 2022, immediately after D1
E had climbed out from the private car, a search of the E
private car was conducted by PC25440 (PW11) in the presence
of D1. PW11 found a “SASA” plastic bag (the “SASA Bag”)
F inside the private car, in which five bricks of dangerous F
drugs (the “Drugs”) were found.
G G
The Drugs were subsequently confirmed by government chemist
to be totally 1.734 kilogrammes of a mixture containing
H 1.441 kilogrammes of heroin hydrochloride (a salt of H
heroin). The estimated street value of the Drugs as of
March 2022 was HK$1,786,020.
I I
At about 1210 hours on 22 March 2022, D1 was arrested by
J PW9. When cautioned at the time of the arrest, D1 stated J
that the Drugs were heroin which were given to him by D2,
who offered him a reward of $7,500 for delivering the Drugs.
K D1 stated that he attempted to drive the private car away K
because he did not want to be arrested.
L L
In three cautioned video-recorded interviews conducted on 22
March 2022 and 23 March 2022, D1 stated, inter alia, the
M following: M
(1) D2 was his secondary schoolmate, and he had been
N communicating with D2 via WhatsApp; N
(2) On the night before the arrest, he received
O O
WhatsApp messages from D2 who asked if he would
like to take up the job of delivering heroin. As
P he was in need of money for repaying his debts, he P
agreed to help with the delivery, and he was
promised a reward of $7,500 by D2;
Q Q
(3) He was told by D2 via WhatsApp that altogether
five bricks of heroin needed to be delivered. He
R R
was asked by D2 to visit the premises on the
morning of the following day, ie 22 March 2022,
S when the Drugs would be passed to him for delivery S
to another person who would phone him in due
course. He was further asked by D2 to buy some
T cat food and lunchboxes to the premises; T
U U
CRT11/23.4.2025/AWH 4 HCCC 340/2023(1)/Sentence
V V
A A
(4) After he had arrived at the premises, D2 led him
enter her room where they had meal together.
B Afterwards, D2 left the room for a while. When D2 B
returned, she told him that she had already placed
a bag containing the Drugs inside the trunk of the
C private car; and C
D
(5) He remained at the premises until he received a D
phone call from a person who told him to bring the
Drugs to Kwai Chung Container Terminals. He then
E left the premises by the private car. Before he E
departed, D2 opened the trunk of the private car
and told him that the drugs were contained in the
F SASA bag. D2 then took the cat food, which he F
bought for her, from the trunk and returned to the
G premises. G
D1 voluntarily provided the password of his mobile phone to
H the police. Upon inspection of D1’s mobile phone, the H
police found WhatsApp messages sent by D2 to D1 recruiting
D1 to the job of delivering five bricks of “Sei Jai 四仔”
I I
and asking D1 to go the premises on the 22 March 2022.
J According to the drug expert of the Narcotics Bureau of the J
police, “Sei Jai 四仔” is a term commonly used in the
illicit drugs subculture in Hong Kong referring to heroin.
K K
The dashcam of the private car was seized by the police.
L The relevant footage showed that about 1115 hours on 22 L
March 2022, D2 placed the SASA bag containing the Drugs into
the trunk of the private car.
M M
On the afternoon of 22 March 2022, the police went to the
premises to look for D2 but found that D2 was missing. Upon
N N
a review of the CCTV recordings in the area of Chuen Lung
Village, the police discovered that D2 had left the premises
O at about 1300 hours on 22 March 2022. She had not returned O
to the premises since then.
P On 26 March 2022, the police located D2 in a hotel room at P
InterContinental Grand Standford Hong Kong Hotel in Tsim Sha
Tsui. D2 was arrested by DPC11303 (PW17).
Q Q
Save admitting that she resided at the premises, and that
R her phone number was “6077 7515”, D2 refused to answer any R
other question in the cautioned video-recorded interview.
S Both the 1st and the 2nd defendant now accept and admit that S
at the material time they possessed the Drugs for the
purpose of unlawful trafficking. D2 recruited D1 to help
T T
deliver the Drugs and placed the SASA bag containing the
Drugs into the private car driven by D1. D1 then helped to
U deliver the Drugs to other people according to D2’s U
instructions.
CRT11/23.4.2025/AWH 5 HCCC 340/2023(1)/Sentence
V V
A A
On 5 March 2025, the Court of Appeal, in the case of HKSAR v
Huang Ruifang, 黃瑞芳, CACC 106/2022, set down new guidelines
B for sentencing in trafficking in heroin, in particular, for B
quantity between 500 grammes to 1.5 kilogrammes, the
sentence range is 16 to 20 years.
C C
Section 37 subsection (1)(a) of the Road Traffic Ordinance
D provides that the maximum for dangerous driving is D
imprisonment for 3 years.
E Section 37 subsection (2) and subsection (2)(a) of Road E
Traffic Ordinance provides that the minimum disqualification
is one of 6 months. However, section 37 subsection (2)(d)
F F
provides that the maximum term of imprisonment and minimum
disqualification are each increased by 50 per cent if the
G dangerous driving was committed in circumstances of G
aggravation. It is further provided in section 37
subsection (2)(e) that one of the circumstances of
H aggravation is any concentration of a specified illicit drug H
is present in the offender’s blood.
I I
Section 39K of Road Traffic Ordinance provides that driving
while any concentration of a specified illicit drug the
J maximum term of imprisonment is 3 years, and the minimum J
disqualification provided in subsection (2) and (3) is one
of 2 years.
K K
For wilfully obstructing police officer under section 36B of
the Offences against the Person Ordinance, the maximum term
L L
of imprisonment is one of 2 years.
M D1 is now aged 40 years old. He was born in Hong Kong and M
was educated to Form 5. He is single and was a part-time
taxi driver when these offences were committed. He had one
N previous conviction in connection with infringing copies of N
copyright works in 2003. It is submitted, on his behalf,
O that he agreed to deliver the drugs as he need money to pay O
debts. It is also submitted, on his behalf, that he was not
a drug addict and he took cocaine the night before the
P commission of the offences in order to release his stress. P
I will not take into account of his previous conviction,
Q which is nearly 20 years ago when he committed the present Q
offence, and it is not related to dangerous drugs. On the
R other hand, there is nothing unusual in his background which R
amounts to any mitigating factor. The only mitigation in
his case is his plea of guilty and assistance to police in
S his non-prejudicial statement. S
On 16 May 2023, he gave an NPS against D2. The information
T T
provided in the NPS are similar to what he had said in the
caution interviews and supported by the WhatsApp messages
U found in his mobile phone. However, these information have U
CRT11/23.4.2025/AWH 6 HCCC 340/2023(1)/Sentence
V V
A A
nothing to do with the arrest nor prosecution of D2 as there
are sufficient evidence against D2. As a result, the
B information he provided only constitutes useful intelligence B
to the authorities and it is to that extent considered to be
of practical use to the authorities.
C C
I noted from the record of proceedings that on 29 June 2023,
D
D2 indicated her plea of guilty while D1 asked for D
adjournment to negotiate with Department of Justice. 29
June 2023 is the fifth return day.
E E
On 10 August 2023, the sixth return day, the 1st defendant
asked for further time to consider his plea as plea bargain
F with Department of Justice was unsuccessful. D2 maintained F
her indication of plea of guilty.
G G
On 26 October 2023, the seventh return day, both defendants
entered formal pleas of guilty to their respective charges.
H H
In R v Yan Im Kun [1997] 4 HKC 339, Bokhary JA as he then
was, said, quote:
I I
“Where there is more than one accused, that each of
J them should have an incentive to be the first to plead J
guilty and offer to give evidence against the other or
others is a very good thing. Whatever may be said
K about the rat race, the courts should give criminals K
every incentive to enter a race to rat, so to speak.”
L L
In D1’s letter to court directly, he said he had written to
Department of Justice on two occasions but no reply from
M Department of Justice. From the record of court M
proceedings, it seems those acting for D1 had also written
to Department of Justice, however I do not have any of those
N written representations. I do not know what D1 was offering N
or asking in return for his NPS. I asked Mr Wong, counsel
for D1, to take instructions on disclosure of those
O O
communications with Department of Justice to me so that I
can in a better position to assess the credit that I should
P give for his assistance to authority. My invitation for P
disclosure was declined.
Q In Lo Sze Tung Stephanie, CACC 190/2017, the Court of Appeal Q
said at paragraph 52, quote:
R R
“We should emphasise that it is the responsibility of
the defendant’s counsel to place before the judge all
S the information needed to enable the judge to make an S
assessment of the assistance...”
T In the same paragraph, the Court of Appeal said, quote: T
U
“We cannot emphasise enough that the judge’s assessment U
depends on what the judge is told by the defendant’s
CRT11/23.4.2025/AWH 7 HCCC 340/2023(1)/Sentence
V V
A A
counsel who is under a professional obligation to do
all that he can to advance his client’s interests. The
B less the judge is told the harder it will be for the B
judge to make an accurate and fair assessment. Counsel
must be in possession of all the facts and be in a
C position to assist the judge in any queries the judge C
may have.”
D D
Given the limited information I had, I assessed his
assistance is one of providing useful intelligence to
E authorities only. I am of the view that the discount I can E
give to D1 for his plea and assistance falls within the
range of one-third to 40 per cent. Given the assistance
F only constitutes useful intelligence and had nothing to do F
with the arrest nor prosecution of D2, I am only persuaded
G that I should give a discount of slightly more than one- G
third, and I adopt a 35 per cent.
H In HKSAR v Ilmayanti [2019] 4 HKLRD 1, the Court of Appeal H
gave a discount of 37 per cent to the assistance rendered by
the appellants as the true value of the appellants
I assistance lay in there being able to identify the recruiter I
so that he can be tracked down through investigation
J processes. J
In HKSAR v Lo Sze Tung Stephanie, CACC 190/2017, the Court
K of Appeal gave the appellant a discount of around 43.5 per K
cent for her assistance in not only the apprehension of the
co-accused, but also she would have given evidence for the
L L
prosecution had her co-accused not pleading guilty.
M Mr Wong, in his submission on behalf of the 1st defendant, M
made no reference to whether D1 was willing to testify for
the prosecution had D2 pleaded not guilty. He submitted
N that the 1st defendant, quote: N
“He made a general attempt to assist the authorities.
O O
His assistance have been helpful but, for one reason or
another, it is not assessed to be of particularly great
P value.” P
In the circumstances of this case, I am of the view that 35
Q per cent discount for D1’s plea and assistance is Q
appropriate.
R R
On the facts admitted, I found D1’s role is one of a
courier. For the quantities of drugs involved, I adopt an
S initial starting point of 19 years and 9 months. There is S
no aggravation nor mitigating circumstances. As said above,
I will give a 35 per cent discount for your plea and
T assistance. It came down to 154.05 months and I round it T
down to 12 years and 10 months.
U U
CRT11/23.4.2025/AWH 8 HCCC 340/2023(1)/Sentence
V V
A A
For the dangerous driving, a number of vehicles were
damaged, and two officers and one civilian got injured. It
B was also committed in circumstances of aggravation. I adopt B
a starting point of 3 years and 10 months. Giving you 35
per cent discount, and rounding it down, the sentence on the
C 2nd count is one of 30 months. That is 2 years and 6 C
months. You are disqualified for 9 months. I also order
D
you to attend and complete a driving improvement course D
pursuant to section 72A subsection (1)(a) of Road Traffic
Ordinance. Hence you are disqualified for 9 months or until
E you have attended and completed the course, whichever is the E
later. Furthermore, the disqualification only starts to run
after your release from prison.
F F
For the drug driving, I adopt a starting point of 1 year and
G 8 months in view of the relative small amount of drugs found G
in your blood. Giving you 35 per cent discount the sentence
on this count comes down to 13 months. That is 1 year and 1
H month. You are to be disqualified for 2 years and I also, H
likewise, order you to attend and complete a driving
improvement course.
I I
Finally, for the wilful obstruction, I adopt 3 months as the
J starting point. Giving you 35 per cent discount it comes J
down to 1.95 months.
K As I have already taken into consideration the aggravating K
circumstances in committing the dangerous driving, I order
that that the sentence on the 3rd count is to run
L L
concurrently with the 2nd count, that is to say you will go
to prison for 2 years and 6 months for both offences, and
M you are disqualified for 2 years or until you attend and M
complete a driving improvement course, whichever is the
later, and the disqualification starts to run after your
N release from prison. N
However, the sentence on these two offences are to run
O O
consecutively to the trafficking in dangerous drugs. That
makes a total of 15 years and 4 months. I am of the view
P that a total of 15 years and 4 months is a sufficient P
punishment to reflect your culpability on the day in
question. Therefore, I order the sentence on the wilful
Q obstruction to run concurrently with the 1st count. Q
For the avoidance of doubt, the total term of imprisonment I
R R
pass on you is one of 15 years and 4 months. In that, 12
years and 10 months for the 1st count. 2 years and 6 months
S for the 2nd count consecutive to the 1st count; 1 year and 1 S
month for the 3rd count concurrently with the 1st and the
2nd counts; 1.95 months for the 4th count concurrent with
T the 1st, 2nd and 3rd counts. T
U U
CRT11/23.4.2025/AWH 9 HCCC 340/2023(1)/Sentence
V V
A A
D2 is now 40 years old. She is single and educated up to
Form 5. She had a miscarriage in 2021 and, because of
B COVID, she was unemployed at the time of the offence. B
She had a previous conviction for possession of dangerous
C drugs and was sentenced to 2 years and 6 months by the Court C
of Appeal. She was convicted in the Court of First Instance
D
on the 15 August 2013. In fact, she was prosecuted for D
trafficking in about 200 grammes of ketamine but convicted
by jury of simple possession.
E E
It was submitted on her behalf that she was asking D1 to
return the Drugs to the boss as she wanted to withdraw
F herself from the joint enterprise of trafficking in F
dangerous drugs. If this is accepted by the prosecution, or
G substantiated, I will give her some discount. G
Mr Lau, for the prosecution, did not accept and I
H accordingly invited Mr Lau, for D2, to consider a Newton H
hearing. My invitation was declined.
I In the circumstances, I will not give any credit for her I
assertion that she was returning the Drugs to the boss. Her
J role is more than D1 in that she recruited D1 to make the J
delivery, as well as being the storekeeper of the Drugs in
question.
K K
I adopt an initial starting point of 20 years. For her
plea, I reduce it to 13 years and 4 months.
L L
She had a previous conviction relating to dangerous drugs
M and had been to prison for that. Though the previous M
conviction is some 8½ years ago, I am of the view that the
sentence has to be enhanced to deter you from committing
N dangerous drugs offence. I accordingly enhance the sentence N
by 6 months. The sentence now is one of 13 years and 10
months.
O O
Mr Lau, on your behalf, asked for a reduction of 3 months on
P account of your participation in Father Wotherspoon’s P
programme. I have before me a letter from Father John
Wotherspoon certifying D2,
Q Q
“...has greatly helped our campaign by submitting her
complicated and tragic story which we have used and
R R
will continue using. Her story describes her story of
problems with drugs, her health issues, and how she
S succumbed to drug trafficking to get quick money. The S
sad effects her detention have had on her family, her
study efforts while in detention, all as a warning to
T others not to make the same mistakes.” T
U U
CRT11/23.4.2025/AWH 10 HCCC 340/2023(1)/Sentence
V V
A A
I have also read her story titled “Radio Silence”.
B In HKSAR v Kilima Abubakar Abbas, CACC 143/2016, Lunn VP B
said in paragraphs 66 and 67, quote:
C “However, determining what, if any weight, ought to C
have been afforded the applicant in sentencing for his
D
participation in Father Wotherspoon’s programme is D
fraught with considerable difficulties. At most, the
applicant contributed to the simple message that Father
E Wotherspoon’s programme promulgated to Tanzanians, E
namely that very heavy sentences of imprisonment were
to be expected by those who unlawfully trafficked
F dangerous drugs into Hong Kong. He did not thereby F
expose himself to any danger. It is simply not known
G whether the decrease in the arrests in Hong Kong of G
Tanzanian drug traffickers, to which statistics
reference is made in the judgement of McWalters JA, is
H to be attributed in any way to the programme, let alone H
to the contribution of the applicant. The courts are
ill equipped to make enquiries to make any such
I determination. To do so exposes the court to the I
dangers of indulging in speculation. It is said by the
J Court of Appeal assessing the value, if any, to Hong J
Kong of an applicant’s participation in Father
Wotherspoon’s programme is a matter that the Executive
K is better equipped to perform.” K
Paragraph 67, quote:
L L
“Nevertheless, it lay within the judge’s discretion to
M afford the applicant a small additional discount in M
sentence to reflect this aspect of the applicant’s
conduct. The judge was entitled to afford the
N applicant a discount of 3 months’ imprisonment for this N
factor of mitigation. That level of discount of
sentence is to be regarded as the maximum discount to
O O
be afforded to an applicant in similar circumstances.”
P Macrae VP said in paragraph 91, quote: P
“This court, comprising both of my two colleagues on
Q this appeal, has already twice said that post-sentence Q
participation in Father Wotherspoon’s campaign is a
matter best left to the Executive. I consider that is
R R
right for the reasons they have given and that this
court should adhere to its earlier decisions on this
S matter. Nevertheless, I would still permit sentencing S
judges a discretion to allow a token discount for this
factor. Although such contributions to Father
T Wotherspoon’s campaign do not amount to either positive T
good character nor are they readily borne of remorse,
U
it seems to me that it may still be in the public U
CRT11/23.4.2025/AWH 11 HCCC 340/2023(1)/Sentence
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A A
interest to encourage a prisoner’s efforts in this
regard. That assessment must be in the absolute
B discretion of the court, an exercise with which this B
court will not lightly interfere, but I cannot for
myself envisage any circumstances which might warrant a
C deduction of more than 3 months for this factor.” C
D
McWalters JA, in paragraph 225 had this to say, quote: D
“In my view a court called upon to sentence a drug
E trafficker who seeks a sentencing discount for this E
form of assistance should first decide whether the
actual assistance provided, over the time it has been
F provided, enables him to confidently form the view that F
the defendant has contributed meaningfully to Father
G Wotherspoon’s campaign. If it is too early for the G
judge to confidently form such a view then he should
leave any sentencing discount to be subsequently
H assessed by the Executive.” H
Paragraph 226:
I I
“If the judge forms the view that the defendant has
J made a meaningful contribution to Father Wotherspoon’s J
campaign then he should reward the defendant for the
assistance he has provided to date.”
K K
Paragraph 227:
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“This will always be a matter of discretion for the
sentencing judge. In exercising that discretion the
M judge will take into account the nature and extent of M
the applicant’s participation in Father Wotherspoon’s
campaign, whether that participation has exposed him,
N or members of his family in his home country, to any N
risk of harm and the benefit that has flowed to Hong
Kong from the campaign. This is not intended as an
O O
exhaustive list of the relevant considerations.”
P Unlike the case of Kilima, D2’s participation in Father P
Wotherspoon’s programme was not aimed at broadcasting abroad
with the will to deter people from bringing drugs into Hong
Q Kong from abroad. D2’s story, which I have read, is just Q
like someone expressing her remorse and serves as a general
warning to others. I am not persuaded that D2’s
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participation had contributed meaningfully to Father
Wotherspoon’s campaign. I therefore would not accede to Mr
S Lau’s request of a 3 months’ discount. S
For the 1st count, I pass on the 2nd defendant a term of
T imprisonment for 13 years and 10 months. T
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For D1, the disqualification that I have earlier ordered
“starts to run after your release from prison” is deleted.
B So you are disqualified for 2 years, or after you have B
attend and complete a driving improvement course, whichever
is the later.
C C
D D
I/we certify that to the best of my/our ability
and skill, the foregoing is a true transcript of
E the audio recording of the above proceedings E
F F
..........................................
G Au Wing Han Millie G
Date: 28 April 2025
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
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S S
T T
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CRT11/23.4.2025/AWH 13 HCCC 340/2023(1)/Sentence
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