HKSAR v. Chan Wing Yan

HCCC 283/2019

[2020] HKCFI 2713

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 283 OF 2019

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

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COURT: The defendant, Mr Chan Wing-yan, pleads guilty to one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

The particulars of offence are that the defendant, on the 4 August 2018 at Room 611, Tin Lok House, Shun Tin Estate, No 9 Shun On Road, Sau Mau Ping, Kowloon, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 1,224.44 grammes of a crystalline solid containing 1,194.13 grammes of methamphetamine hydrochloride.

Facts Admitted

The defendant’s family lived together with the defendant’s mother and the family of the defendant’s brother in a public housing unit in Sau Mau Ping. The defendant did not allow others to go into his room and the wife of his brother, PW1, became concerned of his behaviour.

On 4 August 2018, PW1, believing that the defendant was smoking ‘Ice’ in his room, called the police. Before the police arrived, the defendant and his wife tried to leave the room with his wife holding a red recycling bag and the defendant, a red bag, but PW1 stopped them. The police arrived at this juncture.

The defendant rushed into the kitchen and threw the red bag out of the window which was subsequently recovered by the police. A shoe box and a brown paper bag were found inside the red bag.

The shoe box contained an electronic scale, 2 spoons, a pair of thongs and a plastic ruler, all with traces of ice. There were also 11 empty plastic bags and crystalline solids of ice contained in packages of various sizes. Together with the 975 grammes of ice found inside the brown paper bag, there were a total of 1,224.44 grammes of crystalline solid containing 1,194.13 grammes of ice inside the red bag.

The street value of the dangerous drug in August 2018 was estimated to be about $650,000.

The DNA of the defendant was found on 2 of the plastic bags, the 2 spoons, the plastic ruler, the electronic scale and the shoe box. The defendant’s right thumb fingerprint was also found on the sticky side of the tape wrapping a bag containing 52 grammes of ice.

Criminal record

The defendant has 1 previous conviction of trafficking in a dangerous drug for which he was sentenced to 4 years imprisonment on 6 November 2012.

Mitigation

The defendant is aged 34. Counsel for the defendant, Ms Lee, makes a very thorough mitigation on behalf of the defendant. She tells the court that the defendant worked in the vegetable store of his mother before he was arrested, earning $10,000 a month.

Ms Lee submits the letters of the defendant’s mother and the defendant’s younger brother and a district councillor to the court. The mother and the younger brother state in the letter that the defendant is now genuinely remorseful for what he has done. The district councillor expresses in the letter good opinion about the defendant. He explains that the defendant only turned wayward when he was unable to cope with the pressure in shouldering the financial burden of the family and managing the vegetable store of the father when the father died in a traffic accident in 2012. The mother, the younger brother and the district councillor ask for leniency of the court.

Ms Lee explains that the defendant has not pleaded guilty earlier because there were gaps in the evidence of the prosecution regarding the chain of evidence of the dangerous drug. As a result, additional evidence were obtained by the prosecution and filed with the court. The defendant then decided to plead guilty.

Ms Lee asks the court to give the defendant a discount in sentence of 20 to 25 per cent. Ms Lee also urges the court not to treat the defendant as a repeated offender to increase the sentence. She says that the defendant has only 1 previous conviction and despite being similar to the present offence, it happened a few years ago in 2012 and there was a lapse of 3 years after his discharge from prison before he committed the present case. She distinguishes the case of the defendant from HKSAR v Chan Pui Chi [1999] 2 HKLRD 830 and HKSAR v Ip Tsz Yau, CACC 199/2015 in which the defendants respectively had 22 and 33 previous convictions and in the latter case, the defendant committed the offence about 3 months after discharge from prison.

Ms Lee tells the court that the defendant was induced to use his home to store dangerous drugs for a friend named Fat Chai to earn money. The dangerous drug in this case was delivered to the defendant’s place a few days prior to the arrest of the defendant and defendant was to pack the dangerous drug according to the instruction of Fat Chai. The defendant did not play an active role in taking the dangerous drug around in streets.

She tells the court that the defendant is heartbroken for losing the chance of seeing his son grow up and to be away from his mother whose health is deteriorating. Ms Lee urges the court to be lenient to the defendant.

Sentence

The Court of Appeal set down the sentencing guidelines for trafficking in ice in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. For a quantity of 600 grammes to 1,200 grammes of ice, the starting point is 20 to 23 years imprisonment. The amount of ice involved in this case is 1,194.13 grammes and the starting point is approximately 22 years 11 months imprisonment. The defendant basically committed the offence because of economic reasons. This, of course, cannot be an excuse to offend the law and is certainly not a valid ground of mitigation.

The court has much sympathy for the son of the defendant that he will have to go through his teenage without the company of his father. The court however finds it ironical that the defendant becomes heartbroken in being not able to see his son for a long time but has never given a thought about the grief of parents whose children may have become addicted to dangerous drugs and losing all their future because of the trafficking behaviour of the defendant. Although Ms Lee has tried her very best to mitigate for the defendant, due to the serious nature of the offence, what she has put forward to the court helps very little, if any, in the mitigation of the defendant.

Although the defendant has one previous conviction of trafficking in a dangerous drug, as pointed out by Ms Lee, it happened a few years ago. The court accepts the submission of Ms Lee in this regard and will not enhance the sentence because of the previous conviction of the defendant. The court therefore adopts a starting point of 22 years 11 months imprisonment.

The defendant only pleads guilty on the first day of the trial. The court does not accept the explanation of Ms Lee that the defendant has only decided to plead guilty after the prosecution has obtained sufficient evidence to establish the chain of evidence of the dangerous drug. Although the defendant is fully entitled to do that, he knew very well himself what he had done. He should know that in doing so he was running the risk of losing discount in the sentence for not entering a timely plea. The court therefore accords a 20 per cent discount in sentence to the defendant in accordance with the authority of HKSAR v Ngo Van Nam [2016] 5 HKLRD 1.

The court therefore sentences the defendant to 18 years 4 months imprisonment.