HKSAR v. CHAN YAT WAH

HCCC 270/2020

[2022] HKCFI 3376

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 270 OF 2020

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

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COURT: Chan Yat-wah, you pleaded guilty to one count of trafficking in dangerous drugs, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134, on 9 November 2020 and you have confirmed that plea today. That count encompasses a number of different dangerous drugs. It includes a total of 117.1 grammes of ‘Ice’, 110 grammes of heroin, 29.08 grammes of cocaine, 15 grammes of eutylone and 17.95 grammes of herbal cannabis.

The aggregate street value of those drugs was approximately HK$250,000.

The facts of the case have been read out by the prosecution and you have agreed them. On 3 June 2019, you were found inside Room B on the 7^th floor of the Bridal Tea House Hotel in Yau Ma Tei, along with your girlfriend who has been separately prosecuted as she pleaded not guilty at committal and will at some stage in the future go to trial, although her whereabouts are presently unknown.

Upon search of your hotel room, all of the various drugs in the indictment were found inside a red box on a bedside table. On the other bedside table, the police recovered an electronic scale and a number of empty resealable plastic bags. You had in your possession three mobile phones and HK$295,235 in cash as well as some RMB. Your co-accused had some HK$97,829 in cash on her at that time. This was a commercial operation which was clearly lucrative.

In interview, you told the police that you had no fixed abode and that at the material time, you were living in the hotel from which you were running your drugs operation. You suggested you had purchased the drugs for $68,000 and then taken them to the hotel to consume yourself which was patently untrue. You also suggested the phones were used for work, family and gaming and that the considerable sums of cash you had on you were from income and savings. All of that was not true.

By reason of your plea, you now accept you were trafficking in those drugs and that the monies you had on you were the profit from that operation.

You are now 42 years of age and were educated up to Form 4. You have been in and out of some form of correctional institution since you were 17 years of age and have clearly been taking drugs since that date, although you have suggested to this court that your interest in drugs other than heroin is relatively recent.

You have a substantial criminal record, mostly for possession of dangerous drugs up to 2004, when at the age of 25 you moved up to trafficking in dangerous drugs, although I see you were given the benefit of the doubt and received DATC once again.

In 2006, you were before the court once more for trafficking in dangerous drugs and once more you received DATC. It was only in 2007 that you received your first sentence of imprisonment. That had no effect upon you because you were reoffending in 2009 when you were once more before the court for possession of dangerous drugs and yet again in 2012 for possession and for trafficking in dangerous drugs, for which you ultimately received a term of imprisonment of 25 months. Even that did not deter you as you were once more before the court for trafficking in dangerous drugs in 2016 when you received a sentence of 5 years and 2 months’ imprisonment.

The seriousness of your offending has escalated over the years. No doubt, also has your drug dependency. Even though you managed to obtain a trade qualification whilst in prison, you have resorted to making a living by supplying drugs to others and given the disparity between what you say you paid for these drugs and what they could have fetched if sold on the street, it would have been a very good living.

There are five different types of drugs within this single count: Herbal cannabis, ‘Ice’, heroin, cocaine and eutylone. The mixture of drugs containing eutylone, which is often marketed by drug dealers as MDMA, ‘Ecstasy’ or molly, falls within the guidelines for ketamine. As the 17.95 grammes of herbal cannabis is by far the least powerful of the drugs recovered, I will consider that drug last.

For 117.1 grammes of ‘Ice’, the sentencing guideline can be found in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. The starting point after trial would be in the region of 11 years and 9 months’ imprisonment.

The 110 grammes of heroin and the 29.08 grammes of cocaine both fall to be considered under the sentencing guidelines in HKSAR v Lau Tak Ming [1990] (2?)  HKLR 370. As such, I will add those two drugs together, and for 139.08 grammes of the combined drugs the starting point after trial would be 10 years and 3 months’ imprisonment.

The 15 grammes of eutylone should be considered under sentencing guidelines in HKSAR v Hii Siew Cheng, CACC 126/2007. The starting point after trial would be in the region of 4 years and 3 months. If those were simply added together, then you would be facing a starting point for sentence of 26 years and 3 months’ imprisonment which is far in excess of your culpability in this case.

The Different Tests

The absurdity test under HKSAR v Yip Wai Yin [2004] 3 HKC 367.

(Discussion re volume)

I have considered the total amount of the narcotic, which is 289.13 grammes and have taken account of the sentence that it would have attracted if it had been made up entirely of the more powerful narcotics, not the herbal cannabis. If it were made up entirely of ‘Ice’, the most potent drug amongst the cocktail of drugs in your possession, 289 grammes of ‘Ice’ would attract a starting point for sentence after trial of 14 years, 10 months’ imprisonment. If it were all heroin or cocaine, then the starting point for 289 grammes would be 13 years and 4 months. If it were all eutylone, ketamine, then the starting point would be 8 years 10 months. I consider that 14 years and 10 months’ imprisonment is therefore the upper range for a starting point for sentencing.

The ratio test, HKSAR v Yau Ka Ming, CACC 144/2013. The ‘Ice’ was just 40.5 per cent of the total narcotic content and would therefore attract a sentence in the region of 72 months or 6 years. If it were all heroin or cocaine, which amounts to 48.10 per cent of the total narcotic content, then the sentence would be 77 months or 6 years and 5 months. If it were all eutylone, which amounted to 5 per cent of the total, then the sentence would be just 5 months’ imprisonment for the eutylone. If those were added together, that would make a total of 154 months or 12 years and 10 months as a starting point of sentence. That is under the ratio test.

The conversion test under HKSAR v Wong Kin Kau [2010] 4 HKC 443. I then compared this with the conversion test. Taking the ‘Ice’ as the baseline, the 117.1 grammes of ‘Ice’ attracts a sentence of 11 years 9 months. 59 grammes of ‘Ice’ attracts the same sentence as the 139.08 grammes of heroin, and if I add 59 grammes to the 117.1 grammes of ‘Ice’, that is 176.1 grammes, which also attracts a sentence of 12 years 10 months. Without consideration of 15 grammes of eutylone, otherwise called ketamine, or the 17.95 grammes of herbal cannabis which I will consider together as 5 months’ imprisonment, making 13 years and 3 months as a starting point.

The lowest of these three tests is the ratio test and I will adopt 12 years 10 months as a starting point.

Aggravating Features

There are three aggravating features to this case. The first is the latent risk arising from the multiple drugs available for sale, which may encourage the mixing of drugs by users and a greater market for the seller. The second is the role played by you. You and the 2^nd defendant were operating an independent drug trafficking business, which was clearly lucrative. The third is your appalling criminal record. In taking these into account, I have taken into consideration the principle of totality. I consider the second of these three aggravating features to be the most important.

You are a drug addict. You have been abusing drugs for over 20 years and no doubt you cannot break yourself of the habit. You have been more entrepreneurial than most and gone into business for yourself in order to feed that habit and it has proved a successful business. You have been able to move from one hotel to another rather than rent a flat. You had tens of thousands of dollars at your immediate disposal. That business was encouraging others to harm themselves and it would have done considerable damage to society.

For your role, applying the principles in HKSAR v Herry Jane Yusuph, I intend to increase the sentence of 12 years 10 months by 12 months, making 13 years 10 months. For the latent risk element, I intend to increase the sentence by just 3 months in all the circumstances of this case and in the face of the other aggravating features, making 14 years 1 month. I will increase that sentence of 14 years 1 month by a further 5 months by reason of your recidivism, which I consider the second most aggravating feature of this case, making a total of 14 years 6 months’ imprisonment which I note is still within the upper range for sentencing upon the various tests considered by the court.

You must be made to understand that if you cannot break your drug habit whilst in prison and stop offending when you are released, then you will be looking at ever-increasing sentences. I sincerely hope this sentence saves what would otherwise have been an early death arising from your drug dependency.

As for the assistance you sought to provide which predates the absconding of the second defendant, I have heard what Ms Lee and Ms Crebbin have said about the value of this and the possibility that you may give evidence against her. In those circumstances, at this stage of proceedings, I am prepared to discount that enhanced sentence by 40 per cent to reflect your assistance.

You will go to prison for 8 years and 8 months.