HKSAR v. Chan Yui Kai and Another

HCCC 490/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 490 OF 2015

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT: Defendant, you have pleaded guilty to three charges on the indictment. The offences were all committed on the same date, that is 11 July 2015.

The 1st and 2nd charges on the indictment are for trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance. For those two offences, they were committed at Tin Ha Road, Hung Shui Kiu, New Territories. For the 1st charge, you admitted to trafficking in 244 grammes of a solid containing 198 grammes of cocaine. For the 2nd charge, you admitted to trafficking in 9.25 grammes of a powder containing 5.09 grammes of cocaine. The 3rd charge is a charge of possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the same ordinance.

You admitted that at your residence in Tin Yau Court, Tin Shui Wai, you had in your possession 8.26 grammes of a powder containing 7.24 grammes of ketamine.

You were intercepted, walking along with a man who was the co-accused in this trial, by police in the early hours of 11 July 2015 at Tin Ha Road, Tin Shui Wai. At the time, you were carrying a black reusable bag in your hand. When the police officer wanted to search that bag, you then pushed the officer away, both you and the officer struggled with each other. The black bag that you were holding fell to the ground. After you were subdued by other officers, the bag was examined. Inside the bag that you were carrying was found 11 small plastic bags containing a quantity of drugs as stated in Charge 1. After a thorough search of your person, the police found more drugs which were contained in 12 capsules, these were drugs as stated in Charge 2. Subsequently, you were taken back for a house search and at your residence the drugs, as stated in Charge 3, were found inside your bedroom.

Mr Oliver Davies has mitigated on your behalf. He has informed me that you were a heavy drug user of ketamine. For that reason, the ketamine was found at your home. As regards the cocaine that you were trafficking in, you were a courier, or a delivery boy, of this cocaine and you had been offered $4,000 to deliver the cocaine.

You are 28 years of age, have received education up to Form 4 and worked as a mechanic at the time of your arrest. You do have one previous conviction, but it was very long time ago, in fact when you were about 15 years of age, for common assault to which you were sentenced to probation. As Mr Davies has said, the strongest mitigating factor in this case is your early plea of guilty, and you have taken full responsibility for trafficking in these drugs.

The Court of Appeal in Hong Kong have set down guidelines for sentence in trafficking in the drug cocaine. The relevant case is that of Lau Tak Ming. For the purposes of sentencing you for trafficking in the first two charges, I will add up the total amount of drugs in both charges and arrive at an overall figure. The drugs were of the same nature that is cocaine in both charges. The total amount of cocaine in Charges 1 and 2 (that is 198 grammes for Charge 1; 5.09 grammes for Charge 2) is in the amount of 203.09 grammes. Within the case of Lau Tak Ming, that falls in the bracket of between 200 and 400 grammes which would attract a starting point after trial of between 12 to 15 years’ imprisonment.

In the circumstances, had you been convicted after trial I would have taken a starting point of 12 years’ imprisonment. However, giving you full credit for your plea of guilty, that sentence should be discounted by one‑third, and your overall sentence to which you shall serve shall be 8 years’ imprisonment.

Having said that, I will now sentence you individually for each offence.

On Charge 1, I would have taken a starting point of 11 years and 9 months’ imprisonment. Giving you full credit for your plea of guilty, that term would be reduced to one of 7 years and 10 months’ imprisonment.

On Charge 2, I would have taken a starting point after trial of 3 years and 6 months’ imprisonment. Giving you full credit for your plea of guilty, that term will be reduced to one of 2 years and 4 months’ imprisonment.

On Charge 3, I would have taken a starting point of 12 months’ imprisonment. Giving you full credit for your plea of guilty, that term will be reduced to one of 8 months’ imprisonment.

In order to reflect the total overall sentence of 8 years’ imprisonment, I order 2 months of Charge 2 to run consecutive to Charge 1. The remaining term of Charge 2, shall be concurrent and the whole term of Charge 3 shall run concurrent to Charges 1 and 2.

Therefore, your overall sentence is one of 8 years’ imprisonment.