HKSAR v. Chan Ka Chun

HCCC 196/2018

[2018] HKCFI 2252

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 196 OF 2018

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

The defendant pleaded guilty before me to one count of trafficking in a dangerous drug. In sentencing, I have considered the whole circumstances of the case including its nature and facts in particular the type and quantity of the dangerous drug involved, background of the defendant and mitigation put forward on the defendant’s behalf.

The defendant was indeed convicted after trial of this offence before another judge but he successfully appealed against the conviction at the Court of Final Appeal and a retrial was ordered. He indicated through counsel before the listening judge that he might plead guilty and asked that no date for trial be fixed. When he confirmed his desire to plead guilty, no date for trial has yet been fixed.

The facts of the case may be summarized as follows.

The defendant was spotted by police officers standing beside a car parked on the street carrying a box. He was intercepted and searched. The box which the defendant was carrying contained cocaine. Under caution, he said the dangerous drug inside the box was not his. With the keys found on the defendant, access to the aforesaid car was gained. Upon search, further cocaine was found contained in nine plastic bags placed under the driver’s seat. The defendant said he had just got back the car and the dangerous drug was not his.

The total quantity of the dangerous drug the defendant trafficked in was 466.09 grammes of a solid containing 389.58 grammes of cocaine.

I was told that the defendant is 43 years of age. He had worked in the trade of funeral service. He lived in Shenzhen. His criminal conviction record is bad. He has been convicted on five previous occasions but this is the first time he is convicted of the offence of trafficking in a dangerous drug. The previous convictions were in relation to the offences of theft, obtaining property by deception, defraud using false identity card as well as an offence relating to dutiable goods.

In mitigation, learned counsel for the defence, Mr Chau, urged the court to take into account that the defendant pleaded guilty at the first opportunity available to him after an order of the trial had been made. He also informed the court that the health of the defendant is not good and that the defendant had his hand injured whilst in custody.

The Court of Appeal held an AG v Pedro Nel Rojas [1994] 2 HKCLR 69, that in the case of trafficking in cocaine, the guidelines in Queen v Lau Tak Ming [1990] 2 HKLR 370 is applicable since the narcotic content of the two drugs are very closely alike in the degree of harm. In Lau Tak Ming, it was suggested that in cases of trafficking in heroin, if the narcotic content is between 200 grammes and 400 grammes, a sentence of 12 to 15 years’ imprisonment should be considered.

Having considered the whole circumstances, I see no reason to depart from the tariff. On the other hand, I note that in the original trial, the learned judge adopted a starting point of 13 years. Just by simple arithmetic calculation, this may be regarded as lenient. However, there has been no change of the factual allegation against the defendant. Having regard to Queen v Chan Ho Kuen [1990] 2 HKLR 345, and HKSAR v Tse Hoi Pan, Dominic, CACC 168/2008, I will also adopt a starting point of 13 years.

The defendant initially denied the offence, he stood trial and was convicted. He only pleaded guilty when a retrial was ordered on his successful appeal against conviction.

This is not a case of timely plea but I take note that the defendant did indicate his intention to plead guilty before a trial date has been fixed. In the circumstances having regards to HKSAR v Chui Chi Wai, CACC 490/1999, Queen v Ng Wing Kwong, CA 62/1995 and also HKSAR v Ngo Van Nam, CACC 418/2014, I am of the view that the defendant is entitled to a discount of 25 per cent. Having considered the whole circumstances including what learned counsel said in mitigation, I am of the view that this is the extent of discount the defendant is entitled to.

For the above said reasons, I sentence you to an imprisonment term of 9 years and 9 months.