HKSAR v. CHAN KWOK WAI, GEMINI

HCCC 285/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 285 OF 2015

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

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COURT: The defendant, Chan Kwok-wai, Gemini, was charged with one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134. He pleaded guilty before a magistrate and was committed to the Court of First Instance of the High Court for sentence.

The Summary of Facts

On 5 March 2015, an anti-dangerous drug operation was conducted by police officers at the Lo Wu Border Control Point. The defendant was intercepted by police when he was walking from the said control point to the Lo Wu MTR Station together with a 17-year-old male. A search of the rucksack carried by the defendant yielded a plastic bag containing 18 plastic bags of suspected dangerous drug. The defendant was arrested and under caution, he said, “Sir, I understand. I had no money. Therefore, I intended to help someone to deliver ‘K Chai’ to another person in order to earn some money”.

The suspected dangerous drug was later confirmed to be 4,431 grammes of a powder containing 2,741 grammes of ketamine with a street value of $522,858.

During a video-recorded interview, the defendant said he had financial difficulties and agreed with someone called “Wai Chai” to carry ‘K Chai’. He received a call from Wai Chai and went to mainland where he was given the packet of dangerous drug and the rucksack. On the way back to Hong Kong, he happened to bump into a friend and they crossed the border together. He had been promised $2,000 as a reward but he had not received the money yet.

The defendant is a 41-year-old married man with two children. He had no previous criminal convictions and he worked as clerk in Hong Kong from 2008 until 2013, when he became unemployed.

After his arrest, the defendant gave information relating to two other persons involved in the drug trafficking deal, one of whom was a 17-year-old who was with him when he was intercepted by the police. The defendant was willing to give evidence during the trial of the two. In the end, his testimony was not required as both persons pleaded guilty to the offence of trafficking and conspiracy to traffic in a dangerous drug.

Mr Dunn, mitigating on behalf of the defendant, informed me that the defendant came from a family with a successful garment business but the defendant himself was not successful in his own endeavour. Apart from the two teenage children, the defendant had another younger child with a girlfriend in the mainland. Because he was unsuccessful, he was lured to commit the serious crime and he was in urgent need of money to support his family.

Mr Dunn referred me to a number of well-known cases on the issue of discount to be afforded to a defendant who had assisted the authorities, including the case of Sivan and others [1988] 10 Cr App R(S) 282; Z v HKSAR [2007] 10 HKCFAR 183 and HKSAR v Choi Wing Kuen CACC 41/2006. Mr Dunn submitted that the defendant fits all of the four factors illustrated in Sivan and should be given a substantial discount for the sentence. Those four factors are:

(1) The offence was serious.

(2) The information he gave was of value.

(3) He was willing and ready to testify.

(4) He faces danger to himself and his family.

In relation to the fourth factor, I was informed that the defendant received threats while in prison and, indeed, in the dock in this court when he encountered the defendant Chiu before I entered the court. I was given a letter from the Correctional Services Department indicating that the defendant is under protection in prison.

Trafficking in a dangerous drug is a serious offence. Offenders are severely punished when caught and a person convicted of this offence on indictment is liable to a fine of $5 million and to life imprisonment.

In the case of Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, the Court of Appeal set down guidelines for the trafficking of ketamine. The ketamine involved here amounts to 2.741 kilogrammes, so it is within the band of over 1 kilogramme with a starting point from 14 years upwards. In the case of HKSAR v Sin Chung Kin, CACC 458/2011, Yeung VP, giving judgment of the court said, at paragraph 27 of the judgment:

“The longest sentence in the guidelines laid down in Hii Siew Cheng is 14 years’ imprisonment for trafficking in 1,000 grammes of ketamine. However, if one follows the rate of enhancement of sentences as is apparent from Lau Tak Ming and Ching Kwok Hung, then for trafficking in 2,000 grammes and 3,000 grammes of ketamine (which, respectively, doubles and triples the 1,000 grammes which attracts 14 years’ imprisonment) the appropriate starting points should respectively, be no less than 18 years and 20 years.”

In the case of HKSAR v Chow Yau Ching [2014] 2 HKLRD 639, the Court of Appeal made it clear that Sin Chung Kin did not revise any sentencing guideline but rather, having considered the rates of enhancement of starting points for trafficking in large quantities of other dangerous drugs such as heroin and ‘Ice’, made the observation that the appropriate starting point for trafficking in 2,000 grammes and 3,000 grammes of ketamine should, respectively, be no less than 18 years and 20 years.

The Court of Appeal also endorsed a view that there should be a meaningful distinction between the sentence for trafficking in a particular quantity of dangerous drug and trafficking in twice that quantity. There should also be a distinction between a sentence where there were other aggravating factors and a sentence where there were none.

Having considered all the circumstances of the case, the role played by the defendant, the defendant’s background, I am of the view that the appropriate starting point is one of 19 years.

The defendant brought the ketamine into Hong Kong from the mainland so an international element was involved, justifying an enhancement of the sentence (see the case of HKSAR v Abdallah [2009] 2 HKLRD 437 and the case of HKSAR v Hong Chang Chi [2002] 1 HKLRD 486). Bearing in mind that ketamine is less harmful when compared with heroin or ‘Ice’, this case should not attract the same level of enhancement as indicated in the case of Abdallah. I am of the view that an enhancement of 1 year is appropriate here.

The defendant had pleaded guilty at the earliest available opportunity and is entitled to a full one-third discount. I accept Mr Dunn’s submission that but for the information given by the defendant and his willingness and readiness to testify against the other two defendants, it is highly unlikely that either of them would have pleaded guilty before me. I am satisfied that the defendant should be given a 50 per cent discount to reflect both his plea and the valuable assistance he had given to the authorities.

So for the offence of trafficking in a dangerous drug, the defendant is therefore sentenced to 10 years’ imprisonment.