HKSAR v. CHAN WAI NAM, JAN

HCCC 171/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 171 OF 2017

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

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COURT:

On 18 December 2016, Chan Wai-nam was situated near a minibus stand in Sau Mau Ping Estate. There were, nearby, plainclothes officers who thought that she was acting suspiciously. They approached her and following a search of her handbag, they found a black plastic bag containing three transparent packets of a suspected dangerous drug. The drug was analysed later and found to be 71.9 grammes of a crystalline solid containing 66.6 grammes of cocaine.

Following the inspection of her handbag, Ms Chan was arrested. Under caution, she told the police: “I owe the other $400,000, so I trafficked for the other. Please give me a chance, I just got the coke today”.

The next day, Ms Chan was interviewed by the police under caution and the interview was recorded on video. In essence, she confirmed that she carried the drugs because she was in heavy debt. On the particular date in question, she received a call to go to a place in Whampoa. On arrival at the place where she was instructed to go, she received a number of phone calls from unknown males who instructed her to pick up a black bag in a flowerbed nearby. She complied with their instructions.

She checked the black bag and found it contained some white substance. She admitted that she knew that this was cocaine. She was instructed to take the bag to Sau Mau Ping Estate and she complied with that request. The black bag seized by the police was the one that she had picked up on instructions and conveyed to Sau Mau Ping.

It is clear that Chan Wai-nam made full admissions to the police and did so at the earliest possible time. She indicated a plea of guilty to the magistrate following the course of committal proceedings under part III of the Magistrates Ordinance, Cap 227. She did that on 22 May 2017. Following that plea of guilty, she was committed for sentence to the Court of First Instance.

She is now 23 years old. She was born in Hong Kong and left secondary school after Form 1. She, at one stage, joined the youth employment and training programme organised by the Labour Department of Hong Kong. Her parents divorced when she was 4 years old and for all practical purposes, she lost contact with her mother at about age 6. She then lived with her paternal grandmother and saw her father infrequently.

Chan Wai-nam is a person of clear record. It is plain to me that what motivated her to commit this crime was to try and repay money that she had borrowed on behalf of her boyfriend.

From the submissions in mitigation advanced by Mr Wong on behalf of Ms Chan, I have also learned that now she has a daughter of about 1 year of age. While it is inevitable that I will have to send Ms Chan to prison, I hope that, given what else I have heard about her and which I will shortly recite, will motivate her to do everything she can to ensure her now 1-year-old daughter will not follow any part of the path which she has followed to date.

One of the positive things that has come out of this conduct is that she has re-established contact with her father who is present in court today. I hope that this is a sign of a change of direction in the relationship of both of them.

In a letter directed to me, Ms Chan has said in plain terms that she now realises the seriousness of her conduct. She is remorseful and accepts the consequences of her conduct. She is taking courses to improve herself while in custody and has noted that she has received a great deal more family support now that she is in prison. She has turned to religion and I suspect that if she continues on that path, that will be a great support to her while in prison and will help her stay on an appropriate path once she gets out of prison. She tells me, and I accept, that she intends to undertake voluntary work when she emerges from prison.

I have had a letter also from her father and he expresses an understandable parental concern and there is a recognition in his letter that he needs to do more. With respect, that is right, but I would suspect everybody needs to do more to improve family relations.

The Hong Kong Christian Kun Sun Association which provides support and assistance to prisoners has also written positively about Ms Chan and suggests that she is a good-tempered person and has learned a hard lesson. Plainly, it was misplaced loyalty on the part of Ms Chan that she sought to make quick money to repay a debt owed by others.

Trafficking in dangerous drugs is viewed by the courts and community of Hong Kong in a very serious light. The effects of cocaine usage are well known and in the prolonged use of them, none of those effects are good, from two standpoints. The first standpoint is that of the user. The physical and mental harm that can be done by cocaine can be very serious. The second standpoint is that prolonged cocaine use can also have serious consequences for the community in many cases because the effect is not solely limited to the user. Services, such as hospital and medical services, often at the cost of the community, are often engaged in the treatment of the consequences of cocaine use.

There are guidelines set down by the courts of Hong Kong to reflect the serious view that the courts take of this crime and that reflects, as I say, the serious view that the community takes. The source of guidelines in relation to the trafficking of cocaine, starts with the decision of the Court of Appeal in R v Lau Tak Ming [1990] 2 HKLR 370. In Attorney General v Rojas [1994] 1 HKC 342 and HKSAR v Chang Chen Li Sa [1994] 3 HKC 685, the Court of Appeal declared that the guidelines in R v Lau Tak Ming (above) are appropriate for cocaine.

The correctness of the guidelines in relation to cocaine trafficking for sentencing cases of up to 600 grammes were confirmed recently by the Court of Appeal in HKSAR v Abdallah [2009] 2 HKLRD 437. The cocaine involved in the instant case is 66.6 grammes and for that amount, the guidelines suggest a sentence between 8 and 12 years, relating to convictions after trial. That of course is not the position here. Ms Chan has pleaded guilty at the earliest possible opportunity.

It is plain from the materials before me that Ms Chan was a very small player in the distribution of cocaine. She is a person who has clearly and consistently indicated that she takes responsibility for her conduct and she is, I am satisfied, utterly remorseful for her conduct. She has clearly had a difficult life and what I am told, which I accept, is that she is already taking steps to turn that around. In an attempt to combine justice with mercy, I think that the appropriate starting point is 8 years and 6 months.

Reducing that sentence by 33 per cent to reflect her early plea of guilty and manifest remorse, I order that she be imprisoned for 5 years and 8 months.