HKSAR v. Chow Ka Lok

HCCC 461/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 461 OF 2015

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT: I have to sentence you for trafficking in a dangerous drug. You pleaded guilty at the Magistrates’ Court to trafficking in 573 grammes of methamphetamine hydrochloride and you were committed to this court for sentence.

Yours is an unusual case. It is unusual because you walked into Chai Wan Police Station on 12 April 2015 carrying a box containing a frozen double cup glass which contained a liquid which you told them was ‘Ice’, and it was indeed so. You took them back to the premises in Shau Kei Wan where similar items were found. You confessed to using the premises, having rented them with money provided by another person in order to disguise the drugs in the cups and then the plan was to post them off.

This is not a case where you were talking to the police because you had been arrested for something else or where there was any suspicion or knowledge on the part of the authorities as to this drug-trafficking enterprise.

It is the case that you have been to DATC and I cannot believe that you would have been ignorant of the fact that the sentences for drug trafficking in Hong Kong were based upon the weight of the drug in question. It appears that you disclosed to the police all of the drugs that were concerned here. It would have been open to you to dispose of some of the drugs and limit the amount and thereby limit your sentence.

Your case was adjourned so that the counsel in this case could put before me authorities and material which would help me decide how much discount to give you for the conduct I have just described of confessing something to the authorities of which they were otherwise ignorant.

The cases reveal, obviously, that a judge in such circumstances does have considerable discretion. Cases from Australia talk of a “significant added element of leniency”. A leading English case on the topic called Clayton talks of more than a 50 per cent discount.

Instances can be found from cases in Hong Kong of different factual circumstances where discounts in the region of 50 per cent have been given. Looking at the actual figures in the case of Clayton itself, it would appear that a 66 per cent discount was given from what would have been the original, though in that case unstated, starting point.

As I have said in the interchange this morning between bench and bar, what I have in mind is a discount of at least 50 per cent and at the most 55 per cent. One of the considerations that affects my decision is this, that if you had given information about somebody else other than yourself and had stymied a drug trafficking operation and had caused the drugs to be taken off the market and had, by your conduct, engineered a conviction of the man doing the drug trafficking, you would have expected and received a 50 per cent discount. In effect you have done that here but you have done it about yourself and not somebody else, and that adds a moral dimension to the case which is not to be ignored. I appreciate it could be said that there was an element of self-interest in going to the authorities because you feared that you would never be able to escape those who were exploiting you.

In my judgment, that is balanced out here by the point I have already made which is to your favour that you could have manipulated the amount that you disclosed. It is thus that I come around to say that 50 per cent is the minimum discount I will give you, and I find myself debating between 52.5 and 55 per cent.

Bearing in mind the unusual and remarkable conduct in this case, and all of the other matters that I know about you, and I have seen a background report and I have heard what Mr Adams has had to say, I shall, as a matter of mercy and acknowledging those factors, take the 55 per cent discount.

So having settled the discount, I look to establish a starting point.

You will know that the starting point is derived from looking at guidelines, and in your case the guideline for amounts of 300 and 600 grammes results in a sentence after trial of 15 to 20 years. The amount you have is 573 grammes, you are at the top of the bracket and as Mr Adams, in effect, pays in 19½ years. I have no quarrel with that.

Sentencing here is not just a question of mathematics and I am bound to look at the role that you played in the matter. I am satisfied the role was the one which you confessed to the police and which Mr Adams puts forward upon your behalf. That puts the role at the bottom end, there was no one below you in this enterprise. The financing came from above, the drugs came from above, the funds to rent the premises came from above, the actual hardware, the glasses came from above. They were all supplied to you. You were there mainly to do the actual physical work which would expose you to arrest and not them if things went wrong.

In Hong Kong, the amount of adjustment allowed for your role is not a generous one. Jurisdictions in Australia or England and Wales allow for a much wider bracket based on role. I cannot go out outside of the accepted Hong Kong practice and, accordingly, the amount of adjustment for the role is a modest one and I should take a starting point, because of the role, of 18 years. A 55 per cent discount would give a sentence of 8 years’ imprisonment and that is the sentence I pass upon you.