HKSAR v. Chan Hung Kay

HCCC 447/2017

[2018] HKCFI 1014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 447 OF 2017

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

Mr Chan, you have pleaded guilty to one count of trafficking in 128 grammes of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, and also to one count of possession of an identity card which was forged, contrary to section 7A (1) of the Registration of Persons Ordinance, Cap 177, and you did that before the Eastern Magistrates Court on 4 December 2017, and you have confirmed that plea once again today.

The Summary of Facts was read out to you, that forms the basis of your plea and you have confirmed those facts through counsel; as such, you are formally convicted before this court on your plea.

As a result of a stop and search by the police near a roundabout in Cheung Hang Estate, Hang Mei Street in Tsing Yi in the early hours of 24 March 2017, you were found to have, amongst other things, nine plastic bags containing a total of 128 grammes of cocaine, and also a forged Hong Kong Identity Card bearing the number Z100042(0) in the name of Lam Hui-fung.

Mr Chan, the street value of the drugs that were found on you that evening was HK$134,474.

Upon arrest and caution, you admitted that you had agreed to deliver the cocaine for $2,000 reward, but as for the forged ID card, you said that you did not know why it would be like that.

You are 38 years of age now, and you have a criminal record which includes two previous matters of possession of a forged Hong Kong ID card and possession of a false instrument. They were some years ago. Given the fact that you had these matters on your record, I do not accept your protestation to the police upon arrest that you did not know what you had in your possession. I note, however, that this is the first time that you are involved in a drugs related offence.

You were on bail at the time of your arrest for an offence of obtaining property by deception; the fact that that matter has not been proceeded with, does not absolve you of your responsibility to turn up to court when required. The fact that you did not do so resulted in a warrant been issued for your arrest, and that warrant was executed when you were arrested for this offence.

The sentencing guidelines for trafficking in cocaine can be found in R v Lau Tak Ming [1990] 2 HKLR 370. For trafficking in between 50 and 200grammes the range of sentence after trial is between 8 to 12 years. For 128 grammes of cocaine, therefore, the starting point would be 10 years’ imprisonment. There is the aggravating feature that you committed this offence whilst on bail, and for that I will add 3 months’ imprisonment to that starting point. You will receive, of course, a one-third discount for your plea at the earliest opportunity, but there is, as Mr Davies has accepted, no other mitigation which can affect the sentence which this court must pass, so that on Count 1 you will go to prison for 6 years and 10 months.

The sentencing guidelines for possession of a forged identity card can be found in HKSAR v Li Chang Li [2005] HKLRD 864. In the absence of exceptional circumstances, the starting point after trial for this charge would be 18 months’ imprisonment, and therefore, giving you a full one-third discount for your early plea, you will go to prison for 12 months.

I do not accept that both charges arise out of the same circumstances; I do not see any connection between the possession of the forged identity card and the delivery of the drugs, however, looking at the totality of sentence, you will go to prison for 6 years and 10 months on Count 1, and 12 months for Count 2; 10 months of the sentence on Count 2 to run consecutively to that of Count 1. So you will, therefore, go to prison for a total of 7 years and 8 months.