HKSAR v. Chan Yiu Chung and Another

HCCC 84/2019

[2019] HKCFI 2027

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 84 OF 2019

-----------------

-----------------

-----------------------------------------------

Transcript of the Audio Recording

of the Sentence in the above Case

-----------------------------------------------

COURT:

The cocaine, the subject of this charge of attempting to traffic in dangerous drugs, was found in an airfreight consignment which arrived from Sao Paulo in Brazil during August 2015. Among the 108 pieces which purported to be wooden bird sculptures, the police were able to find three packets which contained a solid containing 1,389 grammes of cocaine.

The value of these drugs at street level was $1,737,000-odd.

The defendants had become subject of surveillance and on 13 August 2015, they were seen together in a motor vehicle in which Chan Chun-kit, the 2nd defendant, D2, was seen to be wearing what turned out to be an old shirt with the figures DHL emblazoned on it which belonged to Chan Yiu‑chung, D1. Later investigations revealed that they never had any connection with DHL.

Still wearing the DHL shirt, D2 was seen to hand over money and paper documents to the driver of a second vehicle. That man was named Lam who turned out to be an innocent agent of the two defendants. Lam took up orders for transport from a call centre and he had been called by a client using D1’s mobile. He was instructed to collect an invoice and airway bills at a place where the police were able to see D2 pass those documents across to Lam. Lam’s vehicle was followed to the airport.

Half an hour later, the vehicle in which the two defendants had been seen arrived at the same terminal, Terminal One, driven by Chan Yiu-chung, that is, D1.

Police approached the vehicle, told the occupants to get out. D2 tried to escape but put up a struggle and was duly restrained. Neither of them had much to say. D1 said that it really had nothing to do with him and D2 had nothing to say at all.

D2 has a variety of convictions to his name and he is well‑versed with the courts.

Meanwhile, Lam had not been permitted to collect the consignment because he did not have a company chop but he told D2 this when he actually received the documents that he would need a chop in order to collect the goods. And the reason for that was that the name of the company shown on the documents for collection was Success Union Express Workshop. That turns out to have been a well-established restaurant and has absolutely nothing to do with the criminality involved in this case. The defendants were merely using the name.

In any event, D2 was contacted by Lam and was told to contact the client directly. Eventually, what happened was that Lam, when he was refused permission to take away the goods, he called D1’s number and was told to wait where he was for the company chop.

Lam in due course was located by police in the canteen of Terminal One and he had in his possession three airway bills for the collection of this consignment, which of course contained the cocaine.

Later investigation, as I say, showed that there was no connection whatever, and it is only right to emphasize this, between Success Union Express Workshop or DHL and the criminality involved in this case.

When D1 was interviewed, he told the police that he and D2 were friends and that he was called by D2 to give assistance in delivering some goods and of course a monetary reward was offered. D2 still said nothing.

The aspect of this case which stands out above all else is the quite appalling delay. Not only is the delay a very lengthy one but it is totally unreasonable. There was ample evidence in August 2015 which could have led to the defendants being charged then. There were some minor aspects which needed tidying up, of course, in order that the case could be fully presented to court but it was not until 6 August last year, 2018, a few days less than three years later that they were charged and that delay, now that I have been shown a chronology of events, can be described as utterly unconscionable.

There is no sensible reason for it. What it comes to is that the police delayed for approximately 1½ years before sending the papers to the Department of Justice. In a straightforward case like this, it took the department 1½ years, almost, to give advice that the defendants should be charged, 1½ years for papers that could have been read within two hours, and this puts the prosecutorial system into a very poor light. In fact, it is not going too far to say that this case has been treated with complete ineptitude and a disregard of every rule which requires as far as possible the expeditious treatment of all cases where criminal allegations are concerned.

There was absolutely no impediment to prevent the defendants being charged years earlier within a reasonable period of time, and with the delay of three years in a straightforward case of this kind, it is not going too far to say that this delay was an utter disgrace. And so now, nearly four years from the date of the offence, I need hardly say that this will be reflected in the sentences to be imposed.

Chan Yiu-chung, would you stand, please? Now, you are 36 now. You were 32 when the offence was committed. I have read the letters from members of your family and I have no doubt that you are capable of hard work. It is extremely sad that greed got the better of you in this matter. I have noted that you had a good citizen award in 2002 but I also note that you spoilt your clean record while you were on bail for this offence by acquiring a conviction for theft for which you received a suspended prison sentence. It is to be hoped that the expectations of your family members that you will be rehabilitated on your release will in due course come to fruition.

In any event, you are aware that this case is of considerable seriousness. Cocaine ruins people’s lives and destroys families. As the cocaine content of the powder you were to collect weighed 1,389 grammes, the sentencing guidelines in HKSAR v Abdallah Anwar Abbas [2009] 2 HKC 197 bring this into a band for a sentence of between 23 to 26 years’ imprisonment.

Those sentences are for those who have contested the trial. I propose to adopt the lowest end of the tariff as the band extends from 1,200 to 4,000 grammes. In view of your timely plea of guilty, you will of course receive the full credit. But having regard to the unreasonable delay in bringing your case to court, I propose not to give the ordinary discount of a third but to increase that to 50 per cent. That means that instead of receiving a sentence of 15 years and 4 months, your sentence will be one of 11½ years. That will reflect the fact that you have had four years of worry when you should not have had any length of time at all to worry about this. So your sentence is 11 years and 6 months. Thank you. Sit down, please.

Chan Chun-kit, would you stand, please? You are now 34 years old, I am told, but there is really no mitigation for you other than your plea of guilty and the huge delay you have had to suffer while waiting for this hopelessly inept prosecution to bring its case to court after they had got their act together.

Your prison sentences before have never involved trafficking but it seems as though you have learnt nothing from your past history of criminal behaviour. You, like your co‑defendant, just got greedy. For exactly the same reasons as I have given him, your sentence is 11 years and 6 months.