HKSAR v. CHAN TAK WAI

HCCC 216/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 216 OF 2016

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

Chan Tak-wai was convicted after trial on an indictment alleging that on 11 November 2015, at Tin Yiu Estate, Tin Shui Wai, he unlawfully trafficked in 490 grammes of a solid containing 316 grammes of ketamine.

The jury must have accepted as proved beyond reasonable doubt that he carried the drugs in the bag Exhibit P4, in a taxi from his residence at Ma On Shan to the wet market in Tin Yiu Estate. There, he was intercepted by police officers who had stopped the taxi in which he was travelling. At the time he was intercepted, he was found to have in excess of $37,000 in cash on his person.

I am satisfied beyond reasonable doubt that the only inferences that the $37,000 in his possession was for future use as a trafficker. That I am satisfied is relevant to the orders I will shortly make.

During the course of the trial, he told the court, and I accept as true, that he was working at one full-time job, and one part-time job. The full-time job was as a transportation worker delivering frozen meat. From this, he derives a salary of $16,000 per month.

His part-time work in the evening involved the delivery or distribution of newspapers, and he estimated that his monthly income from this source was something of the order of $7,000 a month.

The accused is the youngest of five children. He is a married man. He was married in 2013, and he is the father of a son and a daughter.

Chan Tak-wai was convicted before the District Court on 14 April 2009 of trafficking in a dangerous drug. He received a sentence of 4 years’ imprisonment. At the time of his imprisonment, he must have been 19 years of age.

Ketamine is a dangerous drug pursuant to Section 2 of the Dangerous Drugs Ordinance and the first schedule to that ordinance. The maximum penalty for unlawful trafficking in a dangerous drug is a fine of $5 million or life imprisonment, or both. The courts of Hong Kong have articulated a series of guidelines for the unlawful trafficking of dangerous drugs and, in particular, for the unlawful trafficking of ketamine.

On any view, the penalties reviewed in those guidelines reflects a serious view that the courts on behalf of the Hong Kong community take of such conduct. That such a serious view is taken reflects, amongst other things, the real danger to both an individual who takes ketamine, and to the community who might have to deal with the consequences of those who take ketamine.

The sentences are meant to be deterrent. There is no question about that. The danger to the individual who ingests ketamine was outlined in depressing detail by the Court of Appeal, comprising then Ma CJNC, Stuart-Moore VP and Stock JA in Secretary for Justice v Hii Siew Cheng [2009]1 NKLRD 1. On any view, the short-term and long-term consequences of the ingestion of ketamine are potentially very serious indeed. The sentencing guidelines outlined in that particular case reflects this.

The sentencing guidelines outlined in that case that is relevant for the present case is the 5th bracket, which states for between quantities of 300 grammes and 600 grammes, the Court of Appeal has suggested a term of imprisonment of somewhere between 9 and 12 years’ imprisonment.

From the facts found from the jury, I don’t know where the accused fit in to the hierarchy of distribution. I think I can safely say that he is not one of the bosses who direct the trafficking of ketamine. Given the dearth of knowledge as to this matter, which is no criticism of anybody, the most merciful view that I can take is to treat to accused as someone is pretty low in the hierarchy.

In the circumstances of this case, it is not surprising that it is unknown to the court as to precisely why Chan Tak-wai participated in the trafficking of ketamine. But he must have realised in acute and specific detail, what risks were entailed in trafficking in dangerous drugs would be easily derived from the fact that he has been previously convicted of this offence before the District Court.

It is always a matter of sadness that a lesson as severe as going to prison for 4 years, starting when you are only 19 years of age was not a lesson fully learnt by the accused in this case.

It is a matter of sadness, because in the time since his release from that previous sentence, which release was in July 2011, he has married, and he has become the father of two children. Inevitably, those children will be deprived of what fathers bring to a family for the duration of the sentence which I shall shortly pass. They will be the poorer for that.

I am satisfied that within the meaning of Section 56(1) of the Dangerous Drugs Ordinance, Cap 134, that the $37,000 is money which had been used in the commission of, or in connection with, an offence under the Dangerous Drugs Ordinance. As a result, I order that this amount be forfeited to the government.

As to the balance, I think something of the order of $270, I am not so satisfied, and that amount can be returned to the accused. I cannot make an order in relation to the $270 as to where it goes, but I express the hope that the accused will ask the authorities to pass the balance to his wife and children. That is the sentence of the court.

There is an application for the order of disposal of exhibits, and subject to the order I have just made, and subject to the mobile phones being returned in due course, I accede to the balance of that application.

So far as the sentence of imprisonment that it is my duty to pass on Chan Tak-wai, I do not take a mathematical approach to the sentencing range suggested by the Court of Appeal, and in an attempt to combine justice and mercy, it is the order of the court that the accused be imprisoned for 9 years.

That is my order.