HKSAR v. Kwok Chai Chun

HCCC 159/2024

[2024] HKCFI 3567

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 159 OF 2024

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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 a Magistrate on two counts of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He was committed to the Court of First Instance for sentence. The defendant had confirmed his plea and admission of the Summary of Facts before me.

In relation to Count 1, the defendant on 8 July 2022 outside Flat D, 25th Floor, Enchantee, no.245 Tai Kok Tsui, Kowloon (“the Flat”) together with other persons unknown unlawfully trafficked in 130.9 grammes of a solid containing 111.6 grammes of cocaine.

For Count 2, the defendant on the same date, at the Flat together with other persons unknown unlawfully trafficked in 329.3 grammes of a solid containing 259 grammes of cocaine.

The Facts

In May 2002, the defendant rented the Flat on a short-term basis at a monthly rent of $10,500 and five keys were passed to him. In the morning of 8 July 2002, the police carried out an anti-narcotics operation at Enchantee. At around 6.18pm, the defendant was seen entering the building. The Flat was put under observation.

At about 7.03pm, the police intercepted the defendant when he left the Flat. The defendant carried a black recycling bag which contained:

(1) a plastic bag containing five plastic bags with a total of 119 grammes of a solid containing 101 grammes of cocaine;

(2) another plastic bag containing 11.9 grammes of a solid containing 10.6 grammes of cocaine;

(3) six keys and a Samsung key card. Three iPhones were found in defendant’s pockets of his jean shorts.

The defendant was then arrested for trafficking in dangerous drugs and upon caution he said, “Ah Sir, as I am heavily indebted, I help someone to deliver the drugs downstairs to the others.”

Using the Samsung key card found on the defendant, the police gained entry to the Flat. A search of the Flat uncovered a total of 279 grammes of cocaine as particularised in Count 2, together with items such as phenacetin and some drug-packing paraphernalia listed as follows:

(1) one blue IKEA bag containing an iron plate containing one plastic bag containing 694 grammes of a solid containing phenacetin and a roll of zip slide bags;

(2) a plastic bag containing six plastic bags with a total of 71.7 grammes of a solid containing 62.4 grammes of cocaine;

(3) a plastic bag containing nine plastic bags with a total of 215 grammes of a solid containing 185 grammes of cocaine;

(4) three plastic bags containing a total of 42.6 grammes of a solid containing 31.6 grammes of cocaine;

(5) two electronic scales with batteries;

(6) a red pen;

(7) a large number of empty transparent resealable plastic bags;

(8) one black plastic bag.

Under further arrest and under the caution, the defendant said in Punti, “Ah Sir, I bring the drugs here downstairs to the others.”

The estimated street value of all the cocaine seized is $471,705 (in powder form) or $766,693.20 (in crack form).

In a subsequent video-recorded interview on 9 July 2002, the defendant admitted that:

(1) He owed a sum of $150,000 to banks and a finance company. He was helping a male alias ‘Gut Siu’ (“GS”), to deliver drugs. He did not personally know that GS. He had GS’ contact number through a friend called ‘Ah Hei’, who knew his financial situation and asked him to take the job of helping GS to deliver the drugs to others.

(2) GS first contacted him in about mid-May 2022 and asked him to rent a place for which the rental would be paid by GS. GS then asked him to buy miscellaneous items such as curtains, zip slide bags, a pot. GS later gave him a black iPhone to contact different people to get drugs and he would also receive instructions from the phone.

(3) After collecting the bags, he would wait at the Flat for GS’ further instructions. GS would then ask him to deliver the drugs to others. He brought drugs back to the Flat on about five to six occasions. His job was to mainly put the small bags of drugs together in larger bags. He would then contact different people and distribute the drugs.

(4) He received a call from GS at about 6pm on 8 July 2022 and he was instructed to pass the cocaine particularised in Count 1 to somebody. He was on his way to deliver the drugs when he was intercepted. He did similar jobs for GS twice and he received cash of $2,000 to $3,000 each time.

(5) All the drugs and phenacetin found on the Flat were brought by him on five to six occasions. The drugs were for distribution to others. GS told him the drugs were ‘coke’ and he understood it as a type of drugs. He confirmed his knowledge of all the exhibits shown to him, in particular the iron plates and the electronic scales which were for weighing the white powder containing the phenacetin.

(6) He provided the passcode of the black iPhone given by GS and he was able to provide GS’ phone number. A person alias ‘Lung Jai’ was shown in the chat history as the one who calculated the remuneration.

The defendant’s iPhone given by GS revealed his chat history with GS about the trafficking activity with photos of dangerous drugs found and with ‘Lung Jai’ about remuneration and settlement of expenses.

The defendant now accepts and admits that at the material time, he together with other persons unknown, knowingly possessed all the cocaine seized in the present case and particularised in Counts 1 and 2 for the purpose of unlawfully trafficking.

Background and Mitigation

According to the antecedents statement, the defendant was 24 years of age at the date of the offence and is now 26 years old. The defendant has attained Associate degree level in Hong Kong. The defendant was unemployed at the time of arrest. He has a clear record before this case.

Mr Luk, counsel for the defendant, confirmed the information supplied in the antecedents statement and corrected the district of his address. He supplemented that the defendant graduated with a Higher Diploma in Social Work from the Chinese University of Hong Kong in 2020.

In mitigation, the defendant had pleaded guilty at the first earliest opportunity. Mr Luk said the defendant made a big mistake in life and is genuinely remorseful. He submitted that the defendant had learnt a bitter lesson. Mr Luk submitted that due to the pandemic and the failure of the defendant’s father’s food stall business, his family was in grave financial hardship.

The defendant could only secure a part-time job as sales assistant and had to make ends meet by credit card overdraft. He succumbed to temptation by some undesirable peers with a view to earn quick money. He committed the offence because of his financial difficulties and his greed for quick money.

I have read the letters from the defendant and his parents. The defendant expressed his remorse and begged for a chance to be dealt with leniently, promising that he would be a law-abiding person. His parents all said he was a good person who took care of the family and he shouldered the financial hardship of the family including his father’s medical treatment. They also asked for leniency on behalf of the defendant.

Considerations of Sentence

The sentencing approach in trafficking cases is set out by the Court of Appeal in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 and HKSAR v Lee Ming Ho [2024] HKCA 150; [2024] HKLRD 1186. I will follow the six-step sentencing approach set out in Yusuph.

Step one, to assess the gravity of the offence and to identify the relevant guideline band or bracket applicable to the quantity of narcotics concerned.

For Counts 1 and 2, the combined narcotic content is 390.6 grammes of cocaine. Although the defendant was found guilty of two counts of trafficking a dangerous drug upon his plea, the circumstances of these two offences were such that the cocaine found in the 1st count was clearly connected with those found in the 2nd count.

Following HKSAR v Wan Lau Mei [2014] 4 HKC 75, the Court of Appeal held that where different quantities of dangerous drugs are found in the defendant’s possession on the same day but at different locations, the sentencing court should impose sentence on both offences for the total narcotic content, and then make the sentences concurrent with one another. So I will consider the appropriate overall starting point by adding the quantity of both counts together.

The sentencing tariffs for trafficking in cocaine are provided for in R v Lau Tak Ming [1990] 2 HKLR 370. For quantities of 200 to 400 grammes, the sentencing band is 12 to 15 years’ imprisonment. The guideline was set for defendant who was involved in trafficking at the lowest level of culpability, namely, as a courier or a storekeeper. The mathematically calculated starting point for 390.6 grammes of cocaine would be 14 years 10 months’ imprisonment.

Steps two and three involve an assessment of the defendant’s role and culpability. The role of an accused in aspects of trafficking can vary significantly. As Mr Luk correctly put it, the defendant was a highly involved courier and storekeeper. Apart from renting the Flat, under the instructions of GS, he contacted different people to get the drugs and had the drugs brought back to the Flat. He then received further instructions from GS and was tasked with making deliveries. There was also packaging paraphernalia, such as two electronic scales and a large quantity of resealable plastic bags. This indicates the defendant was heavily involved in the packaging and dissemination of the dangerous drugs which would heighten his culpability.

I therefore assess his culpability on that basis and consider an enhancement of 4 months would be appropriate for this factor. This brings the starting point to 15 years and 2 months.

Fourth, there are no other aggravating features in this case.

Fifth, I am required to have regard to all mitigating factors. I have been told about the defendant’s background and what he has said in his letter as to the reasons why he committed the present offence. However, as the Court of Appeal made clear in Yusuph, in cases of this nature, personal circumstances will count for little unless they are exceptional.

The main mitigating factor in the defendant’s case is, as rightly pointed out by Mr Luk, his guilty plea at the earliest available opportunity. He is entitled to a one‑third discount of the starting point, which brings the sentence down to 10 years and 1 month’s imprisonment, after rounding down, for each of Counts 1 and 2. I further order the sentences on Counts 1 and 2 shall be served concurrently.

The final sentence I would impose on the defendant is one of 10 years and 1 month’s imprisonment.