HKSAR v. Kwan Tak Hung

HCCC 110/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 110 OF 2015

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REASONS FOR SENTENCE
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1.The defendant has pleaded guilty to a single count of trafficking in a dangerous drug and now has to be sentenced for the crime that he has admitted he committed.

2.The offence took place on 29 August 2014 for which he was arrested and charged.  He made a number of court appearances before the Magistrates’ Court and on 13 March 2015 upon indicating that he would plead not guilty, his case was committed to the Court of First Instance for trial.  Soon after his case was fixed for pre-trial review on 21 September 2015 and trial on 3 December 2015.  The date for the pre-trial review was later changed to 8 October 2015. 

3.The defendant was granted legal aid and the lawyers assigned to him advised by letter dated 6 October 2015 that he would plead guilty to the single count on the indictment.  At the pre-trial review hearing the defendant confirmed his intention to plead guilty to the count as charged but it was indicated on his behalf that he was assisting the authorities which required further time to resolve.  The case was adjourned for plea and sentence to 3 December 2015.  On that day, the defendant pleaded guilty to the single count of trafficking in a dangerous drug, and his sentence was adjourned for two months to 3 February 2016 as further inquiries needed to be conducted in relation to the assistance that he was rendering to the authorities.  The sentence of the defendant was further adjourned from 3 February to 1 March 2016 at the request of the parties because further time was needed to make inquiries and assess the assistance that he had rendered to the authorities for the purposes of sentencing. 

4.By letter dated 26 February 2016, the Court was informed that no further action would be taken in relation to the assistance that had been rendered by the defendant. 

5.As it is well known, a defendant upon conviction is entitled to a further reduction to his sentence if it can be shown that he has assisted the authorities and that assistance has been of value to them. Unfortunately, as I have expressed in other cases, it is sometimes used as a ploy by a defendant who is intending to plead guilty or has pleaded guilty to suggest that he has information that he wishes to pass on to the authorities as a means of delaying his sentence so that he may remain on remand where less restrictive conditions are placed on a person in custody.  See HKSAR v Mok Man Wai and anor, HCCC 159/2014, 18 February 2016, unreported.  I have made appropriate inquiries through the prosecuting counsel to ensure that this was not such a case.  I am satisfied it was not.  I am informed that the information that has been provided has not been of value to the authorities and therefore no further action will be taken.

6.The facts that had been agreed by the defendant can be briefly stated as follows.  At around 6:15 pm on 29 August 2014, the defendant appeared outside a room in one of the blocks of the Kwai Chung Estate at Kwai Chung, New Territories.  He was wandering around outside the premises and was therefore approached by police.  He tried to get away but was intercepted.  A search of the left pocket of his shorts uncovered a cigarette box containing 40 packets of a total of 8.01 grammes of a solid containing 6.91 grammes of cocaine.  A search of the right pocket of his shorts uncovered three keys.  After he was arrested and cautioned, he said that the “coke” was for his own consumption.  The police then used the keys to gain entry into the room he was outside and a search inside the room was then conducted.  A black reusable bag with its opening tied up by a string was found on a bed.  The bag contained another bag which in turn contained four plastic bags containing a total of 3,476 grammes of a crystalline solid containing 3,386 grammes of methamphetamine hydrochloride, commonly known as Ice.  He was further arrested and cautioned in relation to these drugs that had been seized and he said that someone had offered him a reward of $1,000 and he was told to keep the “ice” and the “coke” at his home.

7.He was later interviewed under caution and stated that at around 4 am on the day that he was arrested he received a call from his friend “Ah Kwai” telling him that another friend called “Tai Ngan Chai” would leave something with him and that Ah Kwai would later collect them from him and he would be given a $1,000 reward. 

8.He said that he would be given some dangerous drugs but he did not know their quantity.  He said that he agreed to do it because he was unemployed and needed the money.  He met up with Tai Ngan Chai around 6 am who left the black bag next to his bed and the cigarette box on a table.  The defendant said he opened the cigarette box to check it and saw that it contained 40 packets.  He then placed the cigarette box inside his pocket before going to sleep.  He explained that at the time of his arrest he was leaving home to throw some rubbish away and still had the cigarette box in his pocket.  He confirmed that he was a drug abuser and addicted to heroin.  He also confirmed that he was receiving CSSA of $2,200 per month.  The defendant admitted and accepted that he possessed the drugs seized for the purpose of trafficking.

9.The estimated street value of the drugs at the time of the offence was $1,489,002. 

10.The defendant is 61 years of age.  He was born in China and came here at an early age.  He was educated up to primary school level in Hong Kong and after finishing school worked as a hawker and a cleaner and thereafter has been mostly unemployed, although he did odd jobs as a security guard.  He is married with a 20 year-old son and his wife and son both live in China.  At the time of the offence, he lived alone in the room at the Kwai Chung Estate.  He says that he has been abusing heroin since 1992 so he has been a drug addict for over 20 years.  He has an appalling criminal record dating back to 1973 and has an array of prior convictions for offences involving violence, drugs and infringement of copyright.  He has 8 prior convictions relating to drugs but none involved trafficking.  He was last convicted of possession of a dangerous drug in December 2003 for which he received 6 months’ imprisonment.  He was released from prison custody on 23 June 2004.  In the early part of his criminal record, he was ordered to attend a drug addiction treatment centre but it has clearly had little effect on him.  There is very little, if anything, that can be said by way of meaningful mitigation on his behalf except for his plea of guilty.  The claimed assistance that he has rendered the authorities has proved to be of no value and for that he will receive no credit. 

11.I will combine the narcotic content of the two drugs and sentence according to the tariff fixed for Ice.  The narcotic content of cocaine and Ice is 3,393.91 grammes (the quantity of Ice is 3,387 grammes). On 9 June 2014, the Court of Appeal in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 revised the sentencing tariffs for a person convicted of trafficking of Ice as set out in AG v Ching Kwong Hung [1991] 2 HKLR 125 and HKSAR v Capitania [2004] HKCU 926.  The Court of Appeal also addressed the question of an appropriate sentence for very large quantities of Ice and applied the sentencing guidelines in HKSAR v Abdallah [2009] 2 HKLRD 437.  The tariff now fixed for a quantity of Ice of 600 to 1,200 grammes is 20 to 23 years’ imprisonment.  As the offence took place on 29 August 2014 the guidelines of Tam Yi Chun apply.  The quantity of Ice is very large and calls for a very high starting point as suggested by the sentencing guidelines.  I will adopt a starting point of 24 years’ imprisonment which I will reduce by one-third for the defendant’s plea of guilty.  There being no other mitigating factors warranting any further reduction to his sentence, the defendant is sentenced to 16 years’ imprisonment.  

Mr Lenny Cheng, SPP (Ag) of the Department of Justice, for HKSAR

Mr Ackber Mohamed Omar, instructed by Bernard Wong & Co, assigned by Director of Legal Aid, for the defendant