HKSAR v. Chau Kai Kwok

HCCC 180/2019

[2020] HKCFI 112

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 180 OF 2019

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

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

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

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

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

COURT:

Mr Chau, you pleaded guilty on 3 June 2019 before the Eastern Magistracy to one count of trafficking in dangerous drugs, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134 in that you trafficked in 777 grammes of cocaine; and to one count of manufacturing dangerous drugs, contrary to section 6(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134.

Those offences occurred on 11 April 2018, when you were intercepted in Kat Tin Village and found to have 44 plastic bags on you containing the 777 grammes of cocaine. At the time that you were arrested and cautioned, you freely admitted that you were supplying those drugs to others because you owed over $100,000. The police then conducted a house search at an address to which only you had access and in which you accepted you were manufacturing crack cocaine. A further 194 grammes of cocaine was found on those premises as well as the equipment used to manufacture. The circumstances of that manufacturing do not indicate a sophisticated operation. I accept that this was a one-man band.

The estimated street value, however, of the drugs was $1,205,099.

You are 43 years of age and a man of previous good character. That in itself suggests that something exceptional must have occurred in your life for you to start to commit crime as a mature adult, and I have heard about your personal and family circumstances which certainly explain why you committed this offence.

The guideline case for trafficking in between 600 and 1,200 grammes of cocaine is HKSAR v Abdallah [2009] 2 HKLRD 437 and the range of sentence is between 20 and 23 years. For 777 grammes of cocaine, the starting point after trial is therefore 20 years, 10 months and 2 weeks.

Where there is a charge of manufacturing, the quantity of the dangerous drugs found may be of value for sentence but it is the act of manufacturing that is the most serious aspect of this offence and is relevant here given the concessions quite rightly made by Mr Chau on your behalf.

According to R v Cheung Wai Kwong and Another, CACC 7/1996 which followed R v Wong Chun Ping and Others [1984] HKLR 247, a sentence for manufacturing should ordinarily be far greater than that for the dangerous drugs recovered and which could have been charged under section 4. Unless the amount of equipment and set-up is small and the role played by the defendant a minor one, then a sentence of 20 years could be appropriate, depending upon the type and the quantities of dangerous drugs which are being produced.

In this instance, Count 2 charges the manufacturing of just 194 grammes although, as I have said, Mr Chau quite rightly accepts you must have manufactured the remainder of the drugs which were recovered under Count 1, although you are not charged with that.

The appropriate starting point after trial for trafficking in 194 grammes of cocaine would have been 11 years and 9 months. Although a total of the whole amount that was found, 971 grammes of cocaine, would have attracted a starting point for trafficking of 21 years, 10 months and 2 weeks, the sentence this court must pass should therefore, in accordance with Cheung Wai Kwong, be greater than that but it is a question of how much greater.

Under Count 2, I am going to assess the starting point against the amount found within the premises as the other dangerous drugs have already been dealt with under Count 1, and I consider a starting point under Count 2 for sentence after trial of 13 years and 6 months to be appropriate. That is just 1 year and 9 months greater than if you had been trafficking and which reflects the circumstances of your particular offending but I must then consider the issue of totality.

You will, of course, receive the full one-third discount for your early plea but I am going to enhance that just slightly for the assistance that you attempted to provide. You will go to prison on Count 1 for a period of 13 years and 6 months, and on Count 2, you will go to prison for a period of 8 years and 9 months.

This was, in effect, one batch of drugs and one operation. It was by chance that you were not simply found to be manufacturing the whole of the batch of drugs you possessed. It would then have fallen to be considered as one charge. You have already received the enhancement under Count 2 for manufacturing. Had there been the one charge of manufacturing, I consider that the enhancement would have been similar. Therefore, I consider it appropriate, when looking at totality, that you should serve 1 year and 9 months of your sentence under Count 2 consecutively to your sentence on Count 1. That would make a total of 15 years and 3 months.