HKSAR v. CHAN HING KAI AND OTHERS

HCCC 1/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 1 OF 2016

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

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COURT:

There are three defendants in this case, all charged for bringing cocaine from Manila to Hong Kong. They were stopped by police officers at the Arrival Hall of the airport soon after they alighted from the plane. Cocaine was found concealed on the person of both D2 and D3. No dangerous drug was found on D1.

They were jointly charged with one count of trafficking in the whole quantity of the dangerous drugs found. They pleaded not guilty to the count but D2 and D3 each pleaded guilty before me to the alternative count that concerns only the cocaine found on each of them. The principal count against D2 and D3 was left on the court file upon the request of the prosecution. D1 pleaded not guilty and stood trial only for the principal count. He was found guilty after trial.

The dangerous drug found on D2 was seven packets containing 1,244 grammes of a solid containing 862.10 grammes of cocaine. The dangerous drug found on D3 was seven packets containing 1,364 grammes of a solid containing 946 grammes of cocaine. The dangerous drug was concealed in the underpants, socks and inside the shoes.

Evidence shows that it was D1 who recruited D2 and D3 for this exercise. D2 was promised a reward of $10,000. He introduced D3 to D1. D3 was promised a reward of $5,000 by D1. D1 handed to D2 and D3 their air tickets and hotel documents in Manila and instructed them to buy the sports shoes in which some of the dangerous drug was to be concealed. In Manila, D1 brought the dangerous drug to the hotel room and put it on both of them. The three of them travelled on the same flight for both trips and D1 was there to keep an eye on the two other defendants.

D1 a 35 years of age. He is married and has a young son and a daughter 4 years old. He had been convicted on five previous occasions since 1997. The offences he had committed included fraud, obtaining property by deception, offences related to prostitution and procuring others to take part in unlawful assembly. This is the first time he was convicted for an offence related with dangerous drug.

D2 is 25 years of age. His father has retired and his mother, 60 years old, is working. He is a first-time offender. Before arrest, he was studying an IVEE course in surveying and has obtained a scholarship.

D3 is 23 years of age. He is married and his wife works as a baker in the mainland. He also did not have any criminal conviction before. His father has passed away and his mother is saleslady but her employment has not been stable. He had studied up to Form 1 and had worked as a waiter before becoming unemployed.

In mitigation, learned counsel for D1, Mr Davies, urged the court to take into account that this was the first time D1 has been convicted of a dangerous drug related offence. He also submitted that despite the other two defendants were recruited by D1, he was just slightly more senior in the hierarchy and his role might be described as co-ordinating the operation.

Learned counsel for D2, Mr Yuen, stressed that D2 had pleaded guilty and testified for the prosecution. With support of documents, he informed the court that the performance of D2 in school had been good and he had participated in volunteer work. D2 is now studying a BBA course and is determined to turn over a new leaf when he returns to the community. He had committed the offence under financial stress and out of greediness and stupidity.

Learned counsel for D3, Mr Ching, informed the court that D3 is suffering from dyslexia and it explains why he could only complete education at Form 1 level which he had studied for three years. Despite his intellectual limitations, D3 had been in regular employment before he lost his job. When in employment, he earned about $5,000 a month and contributed about $2,000 to his family.

Letters from the defendant himself and from his family members were produced. D3 is described to be a man of good nature and a filial member of the family. Family members pleaded leniency on behalf of D3 and suggested that he is a person vulnerable to exploitation because of his character and intellectual limitation. Mr Ching also asked the court to take into account that despite the information was not considered sufficient, D3 did provide witness statements, trying to assist the prosecution.

In AG v Pedro Nel Rojas [1994] 2 HKCLR 69, it was held that the guidelines for sentence in Queen v Lau Tak Ming [1990] 2 HKLR 370 are applicable to cases of trafficking in cocaine. The Queen v Lau Tak Ming only provided a tariff for cases involving narcotic content up to 600 grammes. In HKSAR v Abdallah [2009] 2 HKLR 437, the Court of Appeal set out further guidelines for cases involving larger quantities. It was held that:

(i) For cases involving narcotic content of 600 to 1,200 grammes, an imprisonment term of 20 to 23 years’ imprisonment should be considered.

(ii) If the narcotic content is between 1,200 and 4,000 grammes, an imprisonment term of 23 to 26 years should be considered.

Further, it was held that the following matters are aggravating factors:

(i) International element.

(ii) The trafficker is shown to be a mastermind or senior player in the syndicate.

The Court of Appeal held that each of such aggravating factor calls for enhancement of the starting point. An enhancement of no less than 2 years’ imprisonment should be considered if the amount of narcotic was above 1 kilogramme, for the international factor.

In all the circumstances of the present case, I do not consider there are any reasons to justify departure from the tariff. In my judgment, whilst it cannot be said for sure that D1 was a mastermind, he was certainly the more senior player. At the same time, I accept the submission of Mr Davies that D1 was not much senior than the two other defendants. The case obviously involved an international element. I would therefore enhance the starting point for D1 by 2½ years, 2 years of which is for the international element, and that of D2 and D3 respectively by 18 months.

I adopt the following ultimate starting points: D1, 26 years; D2, 22 years and 9 months; D3, 23 years.

D1 was convicted after trial. Having considered mitigation submission, I do not find D1 is entitled to any discount.

D2 pleaded guilty to the count he now stands convicted. In addition, he testified against D1. D1 was convicted. Very likely the jury accepted the evidence of D2. Having regard to the Court of Final Appeal decision in Z v HKSAR, FACC 9/2006, I will give D2 a discount of about 50 per cent.

D3 also pleaded guilty to the count he now stands convicted. He did not testify against D1. He had offered assistance but, after assessment, the prosecution did not see fit to include him as a prosecution witness. Having regard to the Court of Appeal decision in HKSAR v Lam Ying Kit, CACC 24/2009, and at the same time taking into account the previous clear record of D3, I am prepared to give D3 a further discount of 4 months on top of the one-third discount he is entitled to for his guilty plea.

For the above said reasons, D1, you are sentenced to 26 years’ imprisonment.

D2, you are sentenced to an imprisonment term of 11 years and 3 months.

D3, you are sentenced to an imprisonment term of 15 years.