HKSAR v. Chan Hon Wing and Another

HCCC 210/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 210 OF 2015

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

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COURT: In this case the 1st defendant is the father of the 2nd defendant. They were charged originally with three counts. Charge 1 was trafficking in a dangerous drug; Charge 2 was manufacturing a dangerous drug; and Charge 3 was trafficking in a dangerous drug.

On the first day fixed for trial, the 2nd defendant pleaded guilty to Counts 1 and 3 and not guilty to the manufacturing charge. On his admitting the facts, the Secretary for Justice was not proceeding with charge 2 which is left on the court file, not to be proceeded with without leave of the court or the Court of Appeal. Mitigation and sentencing were adjourned until the end of the trial of the 1st defendant, or further order.

The trial of the 1st defendant proceeded to 21 June with the result that he was found guilty on all three counts: the verdicts on Charges 1 and 3 being unanimous, and the verdict on Charge 2, which is the manufacturing charge, by a verdict of six to one.

The facts as they emerged in the trial evidence showed that the 1st defendant was intercepted by the police and found to be carrying the dangerous drug which is the subject of Charge 1. On arrest and caution he told the police that he was in debt and said he was transporting the dangerous drugs to earn money. He, later, in a video interview, gave an account of his being approached by a fellow taxi driver, known only to him as “Ah Chai B” who suggested that he transport drugs to earn money. He was to be paid $500 a packet on the basis that the payment was to cover manufacturing and transporting.

Shortly after the 1st defendant was intercepted, the police searched the flat which was found to be a place where the 2nd defendant was in the process of packing dangerous drugs and was in the process of making crack cocaine.

The 2nd defendant had been brought into the enterprise by the 1st defendant who had been asked by Ah Chai B to find somebody to help him make cocaine. The 2nd defendant elected to assist his father. When he was arrested and cautioned, he told the police that he was only responsible for cooking the coke and that his girlfriend knows nothing.

The total amount of cocaine seized from the 1st defendant when he was intercepted by police was 1,123 grammes of a solid containing 1,077 grammes of cocaine. The total amount of cocaine seized from the flat was 788.55 grammes of a solid containing 726.04 grammes of cocaine.

The 1st defendant has a record involving offences in around 1987. He has no previous drug offences, and his record is not significant in terms of this offence. The 2nd defendant has a criminal record also. They are comparatively minor offences and, again, not related to dangerous drugs. I do not treat his record as being significant in terms of his sentence.

The personal particulars of the 1st defendant show that he is 63 years old, he was born in Hong Kong. He was educated to Primary 6 level in Hong Kong and at the time of his arrest he was working as a taxi driver. He is married and was currently living with his family: a wife, an elder son, a daughter and the 2nd defendant.

The 2nd defendant is 33 years old, he was born in Hong Kong. He was educated up to secondary 5 in Hong Kong. He had previously worked as a sales and transportation worker and at the time of the offence counsel says that he was working as a merchandiser between Hong Kong and China.

In respect of the 2nd defendant, various letters have been placed before the court, one from the prison chaplain, Mr William Wong. He says that he feels that the 2nd defendant was a frank person and candid, that he was truly remorseful and regretted his wrongdoing and he intended to make every effort to be integrated into society.

The 2nd letter is from Ms Chuk Wing Hung, who is the Service Director of the Youth Career Development Service, or I should say the “ELCHK Youth Career Development Service”. That points out that the 2nd defendant was caught up in the dynamics of his family problems such as the serious financial problems that his father faced, serious mental problems with his mother, the drug issue of an elder brother, and the sister’s problems with her marriage.

Again he considers that the defendant is a responsible person and he said that in such a chaotic family he lost his mind and tried to earn illegal money for settling the family problems.

Counsel pointed out in mitigation that the defendant had said in his interview that he wished to help his father and he proposed to share with him his earnings from the cocaine enterprise.

Sadly, obviously, these are very serious charges, the manufacturing charge being the most serious of all the drug offences. The court has to take that into account.

The guidelines governing this case in terms of sentence are set out in HKSAR v Abdallah Anwar Abbas [2009] 2 HKC 197. The sentencing band is the second sentencing band. The guideline range for a quantity of 1,200 to 4,000 grammes is 23 to 26 years’ imprisonment.

I consider that these offences were so close in time and place that they can be looked on as one operation for the purposes of sentence.

I bear in mind that the guidelines are for trafficking sentence after trial, they do not specifically relate to manufacturers. In sentencing the 1st defendant on the 1st charge, I impose a sentence of 21 years’ imprisonment; on charge 2, the manufacturing charge, 26 years’ imprisonment; on Charge 3, 24 years’ imprisonment.

In respect of the 2nd defendant, on Charge 1, I take a sentence with a starting point of 21 years’ imprisonment, and after a one‑third discount, I sentence him to 14 years on Charge 1; on Charge 2, I take a 14 year starting point, after a one-third discount I sentence the 2nd defendant to 16 years on Charge 3. The sentences imposed on D1 and D2 will be served concurrently.