HKSAR v. Chan Ka Lai

HCCC 99/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 99 OF 2017

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

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Background and the Facts

The defendant pleaded guilty in the Eastern Magistrates Court to two counts of trafficking in dangerous drugs, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134.

Briefly, the facts were these. On 17 June 2016, the defendant’s rented premises in Sham Shui Po were raided by the police with a search warrant. The defendant was not present but there were others occupying the flat at that time.

Inside the defendant’s locked bedroom, one inhaling device, two electronic scales, together with the drugs particularised in Count 1, that is 250.35 grammes of a solid containing 173.21 grammes of cocaine, 90.92 grammes of a mixture containing 48.48 grammes of heroin hydrochloride and 2.15 grammes of a crystalline solid containing 2.1 grammes of methamphetamine hydrochloride, were found. As a result, the defendant was put on the wanted list.

On 4 August 2016, the defendant was intercepted by the police when she was returning to her rented premises in Mong Kok. Under caution for the offence in relation to Count 1, the defendant admitted that all those drugs were hers. This second time, the police found in the Mong Kok premises, two inhaling devices, three electronic scales and the drugs particularised in Count 2. That is 565.65 grammes of a solid containing 366.78 grammes of cocaine, 0.69 grammes of a solid containing 0.53 grammes of heroin hydrochloride and 28.36 grammes of a crystalline solid containing 28 grammes of methamphetamine hydrochloride.

Under caution, the defendant claimed that the drugs in Count 2 were for her own consumption. In the subsequent video-recorded interviews, the defendant stated that the drugs in Count 1 were given to her for trafficking in return for a reward of $600. She had not returned to the Sham Shui Po premises after the police raid. As regards the drugs in Count 2, the defendant also admitted that those were given to her for trafficking for a reward of $2,000. However, she claimed that the packet of ‘Ice’ was given to her for her own consumption.

The estimated street value of the drugs in Count 1 was a total of $356,000 while that for the drugs in Count 2 was $688,000.

Mitigation and the Defendant’s Background

The defendant is aged 40 and is single. At the time of her arrest, the defendant was unemployed. The defendant has got a total of four convictions. Two of those were possession of a dangerous drug and two were theft convictions.

It was said by Mr Boyton for the defendant that her greatest mitigation is her guilty pleas. Mr Boyton explained that the defendant was paid as a courier and although she was truly a drug addict, Mr Boyton frankly admitted that the amount which she would consume out of the drugs in question would not be very significant and, as such, it would not impact upon the sentence to be imposed by this court.

In mitigation, Mr Boyton also provided to the court, documents about the defendant’s donations to a charitable organisation and she having been registered as an organ donor. In short, Mr Boyton asked for a lenient sentence to be passed on the defendant as far as possible.

Sentencing Considerations

Since the counts to which the defendant pleaded guilty involved multiple drugs, there are two sentencing approaches, that is the individual approach and the combined approach. See for example, HKSAR v Ko Ka Hing [2009] 4 HKLRD 856 and HKSAR v Wong Kin Kau, CACC 269/2009 (4 May 2010, unreported).

In this respect, as the bulk of the drugs in each count was heroin/cocaine, I am going to adopt the combined approach. Moreover, as there are two counts of trafficking offences, I am also going to combine the total quantities of the drugs involved in each count in order to arrive at an overall starting point. See for example, HKSAR v Wong To. No doubt, at the end, the paramount consideration is the totality of the overall sentence.

The tariffs for trafficking in heroin and cocaine were laid down in The Queen v Lau Tak Ming and Others [1990] 2 HKLR 370 and HKSAR v Abdallah [2009] 2 HKLRD 437. The drugs in the two counts, when added together, were 589 grammes of heroin/cocaine and 30.1 grammes of ‘Ice’. 589 grammes of heroin/cocaine would attract a term of 19 years and 9 months’ imprisonment. If the 30.1 grammes of ‘Ice’ were to be treated as of the same type and to be added together, then the total narcotic content is 619.1 grammes.

For this amount of heroin/cocaine, I consider a term of 20 years’ imprisonment to be the appropriate starting point based purely on the narcotic content, and I have cross-checked this by applying the conversion test, the absurdity test and the ratio test which in this case all yielded an overall term of about 20 years.

However, there are two further aggravating factors which I need to take into account. The first one is the enhancement to reflect the more serious nature of trafficking in different types of drugs. For example, see HKSAR v Chan Yuk Leong, CACC 318/2013 (8 April 2014). The second one is the fact that the defendant, despite the police raid conducted in June 2016, was, in less than two months’ time, again caught in August to have engaged herself in drug trafficking activity, albeit in another place this time.

For the first aggravating factor of trafficking in multiple drugs, I am going to enhance the overall sentence by 6 months and for the second factor of the defendant’s repeated commission of the same offence shortly after the first one, I am going to enhance the sentence by 3 months. Although this second factor is only applicable in relation to the 2nd count, as I am taking an overall starting point for both counts and as I am going to order totally concurrent sentences for these two counts, I am therefore going to adopt an overall enhancement of 9 months.

Therefore, the global starting point after enhancement which I am going to adopt for each of Counts 1 and 2 is one of 20 years and 9 months. That is a total of 249 months.

The Sentence

The defendant pleaded guilty and she would receive a one-third reduction for that. Other than her guilty pleas, there is nothing which would warrant any further reduction in sentence in this type of serious offences. 249 months reduced by one-third is a term of 166 months. That is 13 years and 10 months.

The defendant is therefore to serve a term of 13 years and 10 months for each count and I order that both terms are to run wholly concurrently, resulting in a total term of 13 years and 10 months.