HKSAR v. Chan Kam Hung, Danny

HCCC 323/2017

[2018] HKCFI 221

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 323 OF 2017

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

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COURT:

The defendant has pleaded guilty to two counts of trafficking in a dangerous drug. The 1st charge charges him, namely, with trafficking in 195.07 grammes of a solid containing 130.42 grammes of cocaine. The 2nd charge he is charged with trafficking in, namely, 655 grammes of a solid containing 453 grammes of cocaine.

The facts show that on 29 October 2016 in the evening, the defendant was intercepted by police officers outside where he lived, that is Yung Sui House, in Fanling. He was carrying a recycle bag and inside the bag was found 15 plastic bags containing the dangerous drugs in Count 1. At the time of his arrest, the defendant was also in possession of 6 mobile phones and some keys amongst other things.

The defendant was escorted back to his home at Room 1604 of Yung Sui House which is a public housing unit and the defendant was one of the registered tenants. The defendant’s son was found in the premises and when the police searched the premises. There were 29 plastic bags containing a total of 655 grammes of a solid containing 453 grammes of cocaine which was in a shoe box in the living room and this is the subject matter the 2nd count.

The defendant upon being cautioned admitted that the drugs belonged to him. He denied he was a drug addict and he said his son had no knowledge of the cocaine. He tested positive for amphetamine when he was in CSD custody shortly after his arrest.

The retail value of the cocaine in 2016 was in the region of HK$890,000.

The defendant is aged 48 and has a total of 16 previous convictions and one for dangerous drugs which was his last conviction in 2011, when he was sentenced to trafficking for dangerous drugs to 6 years and 9 months’ imprisonment. I am informed that he was released in 2014. Not having learnt anything from that imprisonment, he indulged again in the present offence, just two years later.

Against the alleged romantic background of the defendant, the court has to weigh that against the evil that cocaine does to our society. This sort of trafficking activities cannot be encouraged at all for whatever reason. The defendant himself should know that the harm it does to young people in Hong Kong which could easily be visited on his own children.

Ms Lo has said everything that she could possibly say on his behalf in mitigation. She asked for leniency because he has found the love of his life in 2016 and he is truly remorseful for what he has done. He is lucky and he should thank God for the blessing. However, his activities in drug trafficking is certainly destructive to the society we live in. The Court of Appeal has recognised this and I am sure the defendant himself knows what the penalty for trafficking in cocaine. For trafficking in under 600 grammes of cocaine, the Court of Appeal had said in Pedro Nel Rojas [1994]1 HKC342 case that the sentencing should follow that guideline in Lau Tak Ming [1990] 2 HKLR370 for heroin. So for trafficking in between 400 to 600 grammes would merit a guideline sentence of 15 to 20 years after trial.

In this case, the total amount of cocaine is in the region of 583.42 grammes which would merit a sentence after trial of around 20 years’ imprisonment.

The 1st count, the defendant was found with 130.42 grammes on him and so I would determine that a starting point sentence of 10½ years’ is appropriate with one-third off for his early plea. That would reduce the sentence to 7 years’ imprisonment.

On the 2nd count which is for 453 grammes of cocaine, the starting point sentence would be 16 years, reduced to 10 and 8 months for plea. After considering the totality principle, I would sentence in the following way.

On the 1st count, he is sentenced to 7 years’ imprisonment. On the 2nd count, 10 years and 8 months, out of that 6 years will be consecutive to the 7 years in the 1st count and so he goes to prison for 13 years.