HKSAR v. Kan Yun Fai

HCCC 449/2017

[2018] HKCFI 1011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 449 OF 2017

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

Mr Kan, you have pleaded guilty to one count of trafficking in 51.05 grammes of cocaine, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, before the Eastern Magistrates’ Court on 11 December and again today. The Summary of Facts which formed the basis of that plea was read out to you today and you have confirmed them through Mr Lam. As such you are formally convicted before the court on your plea.

As a result of a police stop and search in Bar Pacific, Tak Man Mansion, Pine Street in Mong Kok, you were found to have 1.85 grammes of cocaine in one bag and 49.2 grammes of cocaine in three other bags which you tried to discard whilst accusing the officers of framing you. The street value of those drugs was $69,357.

You have an extensive criminal record dating back to 2003 when you were just 19 years of age. You are now 34 years of age and have been before the courts 11 times not counting today and for 18 offences not including the breaches of probation. You have had eight convictions for possession of dangerous drugs and one for trafficking in dangerous drugs, and you have spent a considerable amount of time in prison during that period for dangerous drugs offences and for other offences of dishonesty, and you have not learnt any lessons from that.

I listened to what Mr Lam has said on your behalf. I understand that you had a difficult early childhood and were placed in youth care facilities as a teenager. But, Mr Kan, you are not a teenager now. Far from it. Perhaps your early life is a reason for you turning to drugs but it is not a reason to turn to crime. You are an adult. You have a job and you have no family responsibilities or other financial problems. You should be able to afford your drug habit without resorting to crime, especially selling drugs to others.

I do accept that you are an addict and Mr Lam tells the court that some of what you had on you that night would have been for your own use but he has refrained from suggesting any quantity and it is not for the court to guess at a hypothetical figure. You indicated in writing that you did not wish to take part in a Newton hearing to establish what part of the dangerous drugs would have been for your own use and so I am left with a bare assertion without any proof, including the fact that the tests carried out on you in Lai Chi Kok proved negative. I will therefore proceed to sentence you upon the whole amount recovered.

Sentencing guidelines for trafficking in cocaine can be found in HKSAR v Lau Tak Ming [1990] HKLR 370. For trafficking in between 0 and 200 grammes, the range of sentencing after trial is between 8 to 12 years. For 51.05 grammes therefore, the starting point after trial would be 8 years’ imprisonment. However, this is not your first time before the courts or your first time for trafficking in dangerous drugs or drug-related offences, and I do find that to be an aggravating feature for which I intend to increase your sentence by 6 months. You will receive a one-third discount for your plea at the earliest opportunity - that is to your credit - but there is no other mitigation which can affect the sentence which this court must pass. I do have every sympathy for your difficult early life, but you cannot use it as an excuse for committing criminal offences. You will go to prison for 5 years and 8 months.