HKSAR v. Tang Wai Keung and Another

HCCC 319/2018

HCCC 320/2018

(Heard together)

[2019] HKCFI 2358

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NOS 319 & 320 OF 2018

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

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COURT:

Mr Tang pleaded guilty to trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance. Mr Chu pleaded not guilty to the same charge and was convicted after trial by a jury. The defendants were jointly charged and the charge was that on 6 July 2017, at DD 119, Lot 1670, Pak Sha Tsuen, Kung Um Road, Yuen Long, New Territories, Hong Kong, they unlawfully trafficked in a dangerous drug, namely, 4,318.59 grammes of a solid and a powder containing 3,146.03 grammes of cocaine.

Mr Tang’s plea was entered before Eastern Magistracy and he was committed to the Court of First Instance for sentence on 8 October last year.

The facts of this case are that on 6 July 2017, at about 4.20 pm, the police broke into a compound in Yuen Long armed with a search warrant. In that compound was a single-story house divided into four units. The police had prised open the metal framed door of the house to gain entry. The police lawfully broke into the compound and house because nobody answered when they knocked. As the police prised open the gate to the house, the door to Unit B inside to the right of the gate opened and Mr Chu peered out. He went back inside Unit B as the police prised open the gate. They rushed towards him and shouted “Police”. He tried to shut the door on them but failed. They gained entry to Unit B and found both defendants inside and arrested both men after a brief struggle.

In the only bedroom of the unit, the police found a carton box containing five big plastic bags of cocaine under a table. On that table, there were several smaller bags of cocaine as well as many different sizes of Ziploc bags, small transparent resealable plastic bags, two electronic digital scales, a ceramic bowl containing a small amount of cocaine, a pair of scissors, a blue cutter, a black marker pen and five empty Chinese tea leaf bags. Both men were arrested and cautioned for trafficking in dangerous drugs.

Mr Tang told the police under caution that he was only responsible for cooking the cocaine. Mr Chu told the police under caution that all the drugs belonged to Tang. In the open kitchen area of the living room, there was evidence that someone was heating up cocaine and mixing it with sodium bicarbonate to make crack cocaine. Both defendants were then arrested and cautioned for manufacturing in dangerous drugs. And under caution, Mr Tang repeated his previous admission that he was cooking the ‘coke’. He added that he would receive $20,000 for every 1 kilogramme he cooked. Mr Chu told the police that all the paraphernalia associated with cooking belonged to Tang.

A forensic examination determined that Mr Chu had left a thumbprint on the larger of the two digital scales and his DNA on the zip of a Ziploc bag containing 31.9 grammes of cocaine. Both were on the table with other bags of differing sizes containing cocaine and drug-packing paraphernalia.

Later in a video-recorded interview, Mr Tang elaborated further and explained he was tempted by the offer of quick money. He met a man who offered him money for cooking cocaine. He was then later taught over the phone by another man how to cook it. He bought the necessary kitchen equipment and tools as advised. He was promised $20,000 for every 1 kilogramme of crack cocaine he produced.

A few hours before his arrest, the cocaine and raw materials were delivered to him in Yuen Long. He said he received a phone call and was told that the goods were outside the address he provided. That is Unit B and was next to a container. He fetched all the items which were in a black plastic bag. He then received another call and was reminded how to cook the drugs, dry the drugs and then pack them into Ziploc bags. He had followed instructions and said he had cooked about 200 grammes of cocaine when the police arrived.

Mr Chu maintained his innocence in his video-recorded interview. He told the police that he was merely present at the scene because Tang had let him sleep there. He was asleep when Tang brought home all the drugs. And although he knew it was cocaine, it had nothing to do with him. He alleged that after his arrest, he was assaulted, threatened and framed by the police. They had pressed his thumb against the digital scale and put a bag of dangerous drugs against his face and his mouth. The jury believed otherwise and convicted him with a majority of six to one.

The total quantity of cocaine seized, as I said, contained 3,146.03 grammes of cocaine with an estimated street value, as of July 2017, of about $4,387,687.

Mitigation

Mr Tang has pleaded guilty to trafficking that amount of cocaine and that is his best mitigation. At the time of his arrest, he was 34 years old. He was born in mainland China but came to Hong Kong when he was about 1-year old. He left school after completing Form 2. He is single and was a transportation worker. He did live with his parents but had rented Unit B some time before his arrest with his girlfriend. However, she left before his arrest after an argument. The defendant, Mr Tang, had a clear record.

Mr Chu was 24 years old at the time of his arrest. He left school after completing Form 5 and was unemployed at the time of his arrest. He is single and was living with his parents and sister. He is not a man with a clear record. On 15 June 2017, that is three weeks before this arrest, he was convicted by Tuen Mun Magistracy of trafficking in dangerous drugs and put on probation for 15 months. When he was arrested in Unit B, he was in breach of his probation order already and subsequently sentenced to 10 months’ imprisonment on 10 July 2017 for that breach.

Trafficking in a dangerous drug is a serious offence. On conviction on indictment, a person is liable to a fine of HK$5 million and to imprisonment for life. As I have said, the total quantity involved is 3146.03 grammes. In Attorney General v Pedro Nel Rojas [1994] 2 HKCLR 69, it was held that the guidelines for sentence in R v Lau Tak Ming [1990] 2 HKLR 370 are applicable to cases of trafficking in cocaine. However, the Lau Tak Ming authority only provided a tariff for cases involving narcotic content up to 600 grammes. In HKSAR v Abdallah Anwar Abbas[2009] 2 HKLRD 437, the Court of Appeal set out further guidelines for cases involving larger quantities of narcotics. It was held that for cases involving narcotic contents of 1,200 to 4,000 grammes, an imprisonment term of 23 to 26 years’ imprisonment should be considered.

In this case, mathematically speaking, the cocaine involved should attract a starting point of 25 years and 1 month. It is well-established that the sentencing starting point for the offence of trafficking in the absence of any good reason to the contrary is dictated by the quantity of the narcotic concerned and calculated by a mathematical approach. The mere fact that both defendants were clearly not the mastermind is not a good reason for departing from that mathematical approach. I have referred myself to HKSAR v Kilima Abubakar Abbas [2018] HKCA 602. The mere fact that Mr Tang has a clear record is of little relevance for an offence of this seriousness. Therefore, I will take a starting point of 25 years for trafficking in this quantity of cocaine.

Can I ask both defendants to please stand up? I have considered the facts of this case, the quantity of cocaine, the defendants’ mitigation as well as the sentencing guidelines. Mr Tang pleaded guilty at the earliest opportunity and is therefore entitled to a full discount.

Mr Chu was convicted after trial and I see no reason or mitigation to consider any discount. Therefore, Mr Chu Kar‑keet is sentenced to 25 years’ imprisonment.

After the full discount is applied to a starting point of 25 years, Mr Tang Wai-keung is sentenced to 16 years and 8 months’ imprisonment. Can I ask if you both understand?

BOTH ACCUSED: Yes, understand.