HKSAR v. Chan Tak Lung and Another

HCCC 17/2018

[2018] HKCFI 1449

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 17 OF 2018

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

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COURT:

Chan Tak-lung, D1, and Yeung Yiu-chung, D2, were jointly charged with one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. That is Count 1. D1 faced one other count of trafficking in a dangerous drug, that is Count 3, and another count of possession of dangerous drug, contrary to section 8(1)(a) and (2) of the said ordinance. That is Count 2.

Both defendants pleaded guilty before a magistrate and were committed to the Court of First Instance of the High Court for sentence.

The Admitted Facts

On the day in question, police saw D1 acting furtively at a carpark in Tuen Mun. He kept looking around and talking on his mobile phone. Shortly afterwards, D2 appeared and they both walked towards a light goods vehicle. They both boarded the vehicle. The police approached them, and upon search, found from inside the 1st defendant’s underpants a piece of tissue wrapping three packets containing what was later confirmed to be a total of 23 grammes of a solid, containing 19 grammes of cocaine with a market value of $18,469.

Under caution, the 1st defendant admitted he was bringing the coke, meaning crack cocaine, to D2. D2, under caution, admitted that he had received $500 from D1 to help deliver the coke to Tsuen Wan for the reward of $500. That is Count 1.

The police conducted a search of D1’s home later. From a bunk bed, the police found a plastic bag containing 0.22 grammes of a powder, containing 0.13 grammes of ketamine. Under arrest and caution, D1 admitted the ketamine was for his own consumption. That is Count 2.

A further search of the flat yielded, from a drawer at the bottom of the bunk bed, a plastic bag containing 37 bags of what was later confirmed to be a total of 776.9 grammes of a solid containing 585.7 grammes of cocaine with a market retail value of $623,850.70.

Under arrest and caution, D1 admitted he helped other person to deliver coke to make money for his living expenses, and that is Count 3.

Background and mitigation

D1 is 37 years of age, born in Hong Kong. He was married but now divorced and he has a daughter aged 8 with his ex-wife. He had two previous convictions of theft and was sentenced to a detention centre in year 2000. D1 claimed to be educated up to Form 3 and had worked as a waiter. He also claimed to be a drug addict.

Mr Chan, mitigating on D1’s behalf, informed this court that D1 committed these serious offences due to financial hardship he faced. He owed $200,000 to credit card companies due to money spent on his wedding and renting a house after wedding.

Since then, since he and his wife divorced, he had to pay $5,000 per month to his ex-wife for her and their daughter’s expenses, and he had to pay $3,000 per month to his parents. Being a waiter and earning 12,000 per month, D1 only had a few thousand for his own expenses and he was also a drug addict, and as he confessed to the police, he trafficked dangerous drugs in order to make money for his own living expenses. D1 wrote to me himself expressing his remorse. While knowing that he has to face the consequences of having committed these offences, he nevertheless asks for leniency so that he could be released earlier to take care of his parents and to be a good father for his daughter. Mr Chan urged me to consider passing concurrent sentences for all three offences.

D2 is 39 years of age, also born in Hong Kong. He is single and used to live with his parents just prior to his arrest. D2 had three previous convictions of possession of dangerous drug and he had been convicted of some driving offences, including driving while under the influence of alcohol. He also had a conviction of failing to comply with direction made by the Customs and Excise. D2 claimed to be educated up to Form 3 and had worked as a driver.

Mr Boey, mitigating on D2’s behalf, confirmed that D2 worked as a professional driver, the same as D2’s father. D2 fully accepted that he had done wrong and is remorseful. D2, his parents and his younger brother, have all written to this court asking for leniency. D2 promised he will not reoffend.

Consideration and reason for sentence

In the case of Attorney General v Pedro Nel Rojas [1994] 2 HKCLR at 69, it was held that the sentencing guidelines laid down in the case R v Lau Tak Ming [1990] 2 HKLR 370, should apply for the trafficking of cocaine. Further, the Court of Appeal in the case of HKSAR v Abdallah [2009] 2 HKLRD 437 had given guidelines for the trafficking of over 600 grammes of heroin and cocaine.

Now first D1. In this case, D1 was convicted of two counts of trafficking in a dangerous drug, cocaine. Count 1 involved 19 grammes, while Count 3 involved 585.7 grammes. Both offences were committed on the same day and the cocaine in Count 1 clearly came from the cocaine stored by D1 in his home in Count 3. The proper approach is to have regard to the total amount in Counts 1 and 3, to arrive at an overall starting point. See HKSAR v Chow Yu Chi CACC 359/2000, HKSAR v Cheung Kwok Leung [2003] 3 HKLRD 542 and HKSAR v Wong To [2001] 4 HKC 499.

Now, the total amount involved is 604.7 grammes. That is 585.7 plus 19. Having considered the role of D1 and the amount involved, and having considered the guidelines, I am of the view that an overall starting point of 20 years is appropriate for D1 for the two trafficking offences. As for the possession of ketamine, the amount 0.13 gramme is relatively small, I am of the view that a starting point of 6 months is appropriate. I will give the 1st defendant a full one-third discount. For the two trafficking offences, with a one-third discount, the sentence will be 13 years and 4 months.

For the possession offence with a one-third discount, the sentence will be 4 months. Having considered the totality principle, I am of the view that the sentences for both the trafficking and the possession offences should run concurrently.

As for D2, for the trafficking in a dangerous drug, 19 grammes of cocaine fell into the 10 to 50 grammes category, with a starting point of between 5 to 8 years. I am of the view that a starting point of 5½ years is appropriate. I will not enhance this starting point, even though D2 had previous record of possession of dangerous drug. I will also give D2 the full one-third discount. Then with the discount, the sentence is 3 years and 8 months’ imprisonment.

So now is the actual sentence. For Count 1, D1, 3 years and 8 months’ imprisonment. Count 2, D1, 4 months’ imprisonment. Count 3, 1st defendant, 13 years and 4 months’ imprisonment. All sentences to run concurrently, making a total of 13 years and 4 months’ imprisonment.

D2, Count 1, 3 years and 8 months’ imprisonment.