HKSAR v. CHAN TAK WAH

HCCC 148/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 148 OF 2017

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

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Background

The accused faced one charge of trafficking in a dangerous drug which was laid against him and his then-girlfriend, the 1st accused jointly. He is the 2nd accused. After trial, the 1st accused was unanimously acquitted, but he himself was convicted by the jury with a 6 to 1 majority. Most of the facts were not disputed at trial, and the only real issue was whether this 2nd accused knew of the presence of the drugs when he mailed the same.

By the jury’s verdict, he must have been found to have such knowledge at the time.

Briefly, the accepted facts were that he was asked by a friend to mail a parcel, and he went with his then-girlfriend to do so. This accused also accepted that he had been given $1,500, which was inclusive of the postage.

The dangerous drugs involved were a total of 999 grammes of a crystalline solid containing 956 grammes of methamphetamine hydrochloride.

The estimated retail value of the drugs was about HK$300,000 at the time of the seizure.

The Defendant’s Background and Mitigation

The defendant is now aged 21 and was at the age of 20 at the time of the offence. He is single and he lived with his stepfather, his mother and his younger brother at the time of the offence. He was educated up to Form 3, and after quitting school, he then worked in his family’s car beauty business, earning about $8,000 per month. He has not had any previous criminal convictions.

In mitigation, it was said by Mr Davies on his behalf that the accused was raised in his early years singlehandedly by his mother, as his father was abusive towards the family and the mother then brought him to live apart. Later, the mother remarried and gave birth to another child.

In the letter written by the accused’s stepfather, one could see how distressing and painful it is for the family, now that the accused has to face a long term of imprisonment. The stepfather put the blame on himself, and said that it might be because all the attention has been given to the accused’s younger brother, which has resulted in the accused being exploited by his undesirable peers.

Mr Davies accepted that there are guidelines for the offence, and that there is not much discretion in the sentencing exercise. He, however, urged upon this court that given the role played by the accused and that he had admitted the bulk of the prosecution case, this is a case to pass the lowest possible sentence.

Tariffs

The tariffs for trafficking in “Ice” were originally laid down in AG v Ching Kwok Hung [1991] 2 HKLR 125, and corrected in HKSAR v Capitania CACC 28/2004, 11 August 2014, unreported. For trafficking over 600 grammes of “Ice”, a term of 18 years’ imprisonment and upwards is called for. In HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, the Court of Appeal recast the guidelines for trafficking in “Ice”, in that for amounts of 600 grammes and over, the same tariffs as are prescribed in HKSAR v Abdallah [2009] 2 HKLRD 437 are to be applied.

In other words, for 600 to 1,200 grammes of “Ice”, a term of imprisonment of 20 to 23 years is appropriate after trial.

The Sentence in this case

With these tariffs, a strict mathematical approach would arrive at a starting point of 21 years and 9 months. However, having considered the amount of “Ice” involved, the facts of this case, as well as the role played by the accused, I am going to adopt a starting point of 20 years.

As to whether there was the international element involved, I would say that although it is highly unlikely that with the postage of a few hundred dollars, one would not have understood the parcel was meant for overseas, I am prepared to accept the prosecution’s concession that since the address was filled out by the 1st accused and not this 2nd accused, there was no evidence that he knew he was mailing a parcel overseas at the time of the mailing. Therefore, I would give this benefit of the doubt to the accused, and I am not going to enhance the sentence further.

Now, the accused’s clear record, in this type of serious offence, is not a mitigating factor for sentence reduction. Since the accused was convicted after trial, he would not be entitled to the reduction in the case of a plea. Therefore, there is nothing else which would warrant any reduction. I order that the accused is to be sentenced to 20 years’ imprisonment.