HKSAR v. CHAN BUN YIN

HCCC 391/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 391 OF 2016

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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 of one charge of trafficking in a dangerous drug and was committed to the Court of First Instance for sentence.

In sentencing, I have considered the whole circumstances of the case, including its nature and facts, in particular the type and quantity of the dangerous drugs concerned, background of the defendant and mitigation put forward on his behalf.

The facts of the case may be summarised as follows. The defendant was stopped outside the building where he was living. Upon search, 37 plastic bags containing cocaine were found on him. Under caution, the defendant admitted that he had received $10,000 for bringing the ‘Coke’ to pass it to someone. Then a search was conducted at his home. There, more cocaine was found. Electronic balances, mugs, trays and metal pots containing traces of cocaine were also found. Under caution, the defendant said he would sell the dangerous drugs if someone wanted to buy it.

The total quantity of dangerous drug the defendant was trafficking in was 1,009.98 grammes of solid containing 838.94 grammes of cocaine. The market value of the drug was about $1 million.

I was told that the defendant is 39 years of age. He received education up to Form 5 and had worked on casual basis. He has been convicted on numerous occasions. The first occasion was for a copyright offence back in the year 2000. The other convictions were in relation to offence of obtaining property by deception, handling stolen goods, copyright offence, using false instrument, as well as possession of dangerous drug.

In mitigation, learned defence counsel, Mr Wong, informed the court that the defendant had, in 2014, set up a business of delivery service but it stopped functioning later since there were difficulties with the business partner. In such circumstances, the defendant suffered a degree of depression. Instead of consulting a psychiatrist, he resorted to drug on which he had been dependent for some time.

The situation, coupled with financial pressure, made the defendant an easy prey for the drug syndicate. It was in these circumstances that the defendant committed the offence. Mr Wong urged the court to take into account that this was the first time the defendant committed the offence of trafficking in dangerous drugs and accepts that he committed the offence out of desperation.

The Court of Appeal held in AG v Pedro Nel Rojas [1994] 2 HKCLR 69 that in a case of trafficking in cocaine, the guidelines in The Queen v Lau Tak Ming [1990] 2 HKLR 370 is applicable since the narcotic content of the two drugs is very closely alike in the degree of harm. In Lau Tak Ming, a sentence of more than 20 years’ imprisonment was suggested for a case of trafficking in heroin if the narcotic content is over 600 grammes.

In a subsequent case of HKSAR v Abdallah, CACC 304/2008, the Court of Appeal held that a sentence of 20 to 23 years’ imprisonment should be considered if the narcotic content of the heroin trafficked in is 600 to 1,200 grammes. There is no reason to justify any departure from the sentencing tariff.

Having considered the whole circumstances, I adopt a starting point of 20 years and 9 months. The defendant is entitled to a one-third discount for his guilty plea. Having considered the whole circumstances, including what learned counsel said on the defendant’s behalf, I am of the view that this is the extent of discount the defendant is entitled to.

For the reasons I have mentioned, I sentence you to an imprisonment term of 13 years and 10 months.