HKSAR v. CHAN CHI KEUNG AND ANOTHER

HCCC1/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 1 OF 2010

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HKSAR
v
Chan Chi-keung (A1)
Yu Cheuk-wai (A2)
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Before: The Honourable Mr Justice Saw

Date: 27 July 2010 at 10.14 am

Present: Mr David Chan, SPP of the Department of Justice, for HKSAR
Mr Leung Chun-keung, instructed by Messrs Cheng & Wong, assigned by Director of Legal Aid, for the 1st Accused
Mr Ian Hastings Polson, instructed by Wong & Co., for the 2nd Accused

Offence: (1) – (2) Trafficking in a dangerous drug (販運危險藥物)
(3) Manufacture of a dangerous drug (製造危險藥物)

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

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COURT: At about 7.30 pm on 5 June 2009, police officers saw two men emerge from Flat 105A on the 15th Floor of Tak Yau Mansion whichis located at 103-107 Lai Chi Kok Road in Mongkok. Both men were intercepted by the police. These men were Chan Chi-keung, the 1stdefendant and Yu Cheuk-wai, the 2nd defendant.

At the scene both men were searched. In the 1st defendant’s underwear the police found what they suspected to be dangerous drugswrapped in a paper parcel. The 1st defendant was arrested on suspicion of trafficking in dangerous drugs. In response to the policeofficer’s questions, he told them that the package contained cocaine which he was about to deliver for a reward of $200.

In the meantime the 2nd defendant had been taken by the police officers into the flat from which both of the accused had earlier emerged.Inside a shoulder bag, then being carried by the 2nd defendant, the police found what they suspected to be dangerous drugs. The policealso observed that the flat contained a large quantity of drug packaging paraphernalia.

The drugs found in the 1st defendant’s possession were determined, upon examination by the Government chemist, to be 24.85 grammesof a solid containing 18.01 grammes of cocaine. The drugs found in the 2nd defendant’s possession were determined, upon examinationby the Government chemist, to be 23.75 grammes of a solid containing 15.72 grammes of cocaine.

In the course of searching the flat police officers found another package of suspected dangerous drugs in the living room. That packagewas likewise analysed by the Government Chemist and was determined to be 6.88 grammes of a solid containing 4.91 grammes of cocaine.

Both defendants were jointly charged with trafficking in the cocaine each of them was carrying when they were apprehended, the totalamount being 48.6 grammes of a solid containing 33.73 grammes of cocaine which is the particulars in Count 1.

Both defendants were jointly charged with trafficking in the one packet of cocaine found in the flat when the police searched it,the amount being 6.88 grammes of a solid containing 4.91 grammes of cocaine, they being the particulars in Count 2.

Today, before me, both defendants have pleaded guilty to Counts 1 and 2. An additional charge they faced on the indictment of manufacturingdangerous drugs, in each case, they pleaded not guilty to. Subsequent to the admission of the Summary of Facts in respect of Counts1 and 2, the prosecutor, properly in my opinion, have requested that Count 3 remain on the court file and not be proceeded with withoutthe leave of the court. Having convicted both of the defendants of Counts 1 and 2 I made that order.

When interviewed by the police, both defendants admitted that they were trafficking in cocaine. Both of them had keys to the flatwhere the packaging paraphernalia and the packet of drugs referable to Count 2 was found.

The total quantity of cocaine for the purposes of sentencing is, therefore, 38.64 grammes and, on the basis of the relevant Courtof Appeal authorities for sentencing, that is, Attorney General v Pedro Del Rojas, which is reported at [1994] of 1 Hong Kong Cases 342 and R v Lau Tak-ming, which is reported in [1990] 2 Hong Kong Law Reports, page 370, the appropriate starting point for sentence, leaving aside for themoment that there are two counts, would, in the normal course of events, be 7 years’ imprisonment.

In respect of each of the defendants, there has been mitigation advanced on their behalf. In the case of the 1st defendant, I wastold that he is 34 years of age and that his circumstances, prior to the commission of this offence, do not indicate that he hadany significant criminal involvement. In 2007 he was self-employed as a driver. He got into financial difficulties, and as is oftenthe case with those who are convicted of trafficking in dangerous drugs, resorted to that course to overcome those financial difficulties.

I am told on this behalf that he did not realise the seriousness of the offence that he had committed. On his behalf, three letterswas placed before me by him, his girlfriend and his elder sister asking that the court consider a lenient sentence given all of thecircumstances.

On behalf of the 2nd defendant, Mr Polson has told me that he was, in December 2007, married. His wife became pregnant; there weredifficulties with that pregnancy which resulted in excessive financial burden. As a consequence of this and his foolishness, he becameinvolved in trafficking in cocaine. One other matter I was told was that subsequent to his arrest, his wife gave birth to a child,and that by reason of his detention, he has had no physical contact with that child since.

In sentencing for trafficking in dangerous drugs, the Court of Appeal has, on a number of occasions, indicated that beyond a pleaof guilty, it is very unlikely that the personal circumstances of the drug trafficker would permit a sentencer to give to him anygreater reduction from this appropriate starting point. Nothing in the circumstances of each of these defendants is remarkable topermit me to do that. They are, of course, entitled to a full one-third discount for their pleas of guilty.

As I have earlier indicated, the appropriate course to determine the overall starting point is to combine the two amounts of the drugsin Counts 1 and 2. This I have done which indicates, on the basis of the authorities, that a starting point for sentence after trialof 7 years’ imprisonment would be appropriate.

Looking at the individual counts – as the defendants must be sentenced on each of the counts – the appropriate starting point in Count1 would be a term of 6 years and 8 months’ imprisonment. And for Count 2, a period of 3 years and 6 months’ imprisonment. Allowinga discount in each case of a full one-third that would result, ordinarily in a sentence of 54 months’ imprisonment on Count 1 and14 months’ imprisonment on Count 2.

However, as I have indicated, the appropriate overall starting point for sentence, combining the weights of the drugs in Counts 1and 2, is a sentence of 7 years discounted by a full one-third to 4 years and 8 months’ imprisonment.

To give effect to that the defendants are sentenced as follows: each of the defendants, on Count 1 is sentenced to 4 years and 6 months’imprisonment. On Count 2, they are each sentenced to 1 year and 2 months’ imprisonment. I will order that 2 months of the sentenceon Count 2, be consecutive to the sentence on Count 1. This will make a total sentence of 56 months’ imprisonment or 4 years and8 months.

(Discussion with counsel regarding calculations)

In fact the correction must be as follows that the appropriate sentence on Count 2 is 2 years and 4 months’ imprisonment and that2 months of that will be consecutive to the sentence on Count 1. That is correct. So for the avoidance of doubt, gentlemen, you mustignore the earlier remarks about Count 2. The correct figures in respect of each of them are 4 years 6 months, 2 years 4 months and2 consecutive. And the overall final figure is 4 years and 8 months.