HKSAR v. Kwan Yun Hang, David

HCCC 431/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 431 OF 2014

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Transcript of the Audio Recording
of the Sentence in the above Case
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COURT: Mr Kwan, you have pleaded guilty to trafficking in dangerous drugs contrary to Section 4(1)(a) and (4) of the Dangerous Drugs Ordinance, Cap 134, and you stand convicted upon your own plea.

You have pleaded guilty to importing 482.82 grammes of heroin and 14.38 grammes of methamphetamine hydrochloride, or “Ice”, as it is commonly called.

The facts of the case have been read out by the prosecution, and you have agreed them. But in essence, they are that you were intercepted at the Man Kam To Control Point on 21 May of last year and when searched, you were found to have the drugs strapped to various parts of your body, as seen in the photographic bundle, Exhibit P23.

You admitted to knowing that they were dangerous drugs at the scene, and you told the police that someone called “Ah Yung” had asked you to import them, which, although you retracted that evidence in interview, was subsequently the truth, as you gave a non-prejudicial statement on 26 June 2014 to that effect.

“Ah Yung”, was also carrying dangerous drugs, but considerably smaller quantities. Because you thought “Ah Yung” had implicated you at the time of your arrest, you decided to point him out to the police and implicated him in the dangerous drugs that you were carrying. You did identify “Ah Yung” and he was arrested. He was charged with trafficking in dangerous drugs but subsequently pleaded guilty to possession of dangerous drugs and was sentenced to a drug addiction training centre order. When searched, he only had 1.94 grammes of heroin and 0.46 grammes of cocaine on him.

In interview, you gave a different version of events and told the police that you worked for a person called “Ah Ming”. It now appears that “Ah Ming” and “Ah Yung” are one and the same. You said that you travelled to a flat in the mainland and that “Ah Ming” had given you all of the drugs to carry back to Hong Kong. At one point, you said he was to pay you $10,000 for the job, later you said it was HK$8,000 and that you were to give the dangerous drugs to someone in Sheung Shui.

The value of the drugs that you were importing in May 2014 was $530,759.

You are now 54 years of age. You have a significant criminal record. You first went to prison in 1979 at the age of 19 and you have been in trouble with the police on a regular basis throughout your 20s and 30s, going to prison again in 1995 for a total of 11 years. However, it would appear that you have not been before the courts since your release in December 2001 and none of your offending was drug-related. So, whilst I take into account your previous offending history, it will not affect the sentence which must be passed upon you for this trafficking in dangerous drugs.

I have also taken into account all that has been said on your behalf by Ms Cheng, including your early indication of plea; limited educational background; previous employment status as a casual worker; that you are now single with no contact with your wife and children; nor with your brother and sisters, save for some limited contact with one sister, and that you have found faith whilst on remand and are truly remorseful for your offending.

I note that you alleged that you are an abuser of “Ice” on a daily basis whilst living on CSSA. Although you do not suggest that the “Ice” that you had on you was for your personal consumption, which is a very sensible approach to take, because you said it was provided to you by “Ah Ming”/”Ah Yung”, and you mentioned only that you were to be paid in cash and not in kind.

If I were to sentence you in accordance with the guidelines for each of these drugs which you imported into Hong Kong, then under R v Lau Tak Ming [1990] 2 HKLR 370, you would be looking at a starting point of 17 years after trial for the 482.82 grammes of heroin. And because this offending was in May of 2014, under AG v Ching Kwok Hung [1991] 2 HKLR 125, a starting point after trial of 7 years and 2 months for the methamphetamine hydrochloride. That would have made a starting point of 24 years and 2 months in total. I have, therefore, considered all that was said in HKSAR v Chan Yuk Leong CACC 318/2013 and the authorities that the court refers to in it. It would appear to me, and was urged upon me by Ms Cheng, that the ratio test in HKSAR v Yau Ka Ming CACC 144/2013 is the most appropriate in the circumstances of this case. Taking into account the principle of totality, I take a starting point, after trial, of 17 years 4 months on count one, which will be enhanced by 1 year under HKSAR v Chung Ping Kun CACC 85/2014 for the importation element of your offending, making a total of 18 years and 4 months.

Following Z v HKSAR [2007] 10 HKCFAR 183, on the narrow basis upon which Ms Cheng asked for acknowledgement of the assistance that you gave to the authorities, but taking into account the fact that the prosecution accept that the evidence was truthful but could not proceed because of the other inconsistent evidence given by you in interview, I have revised my opinion and believe that you should receive a 40 per cent discount including the one-third discount you receive for your plea.

The sentence this court passes upon you is one of 11 years’ imprisonment.