HKSAR v. CHAN HO TAT

HCCC188/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 188 OF 2010

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HKSAR
v
Chan Ho Tat

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Before:

DHCJ Stuart-Moore

Date:

30 July 2010 at 10.04 am

Present:

Mr Harish Melwaney, SPP, of the Department of Justice, for HKSAR
Ms Susanna Ku, instructed by Bernard Wong & Co., for the Accused

Offence:

(1) Manufacture of a Dangerous Drug (製造危險藥物)
(2)-(3) Trafficking in a Dangerous Drug (販運危險藥物)

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

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COURT: On 11 June 2010, the defendant pleaded guilty to a charge of manufacturing cocaine and to two charges of trafficking in dangerousdrugs.

The defendant has now been committed to this court for sentence where he has confirmed, this morning, his pleas of guilty.

The case, although very properly dealt with at some length in the Summary of Facts, was straightforward. On 31 October 2009, Customsand Excise Officers went to a block of flats at 44 Castle Peak Road. When the defendant left a flat on the 23rd Floor at 7.15 pm,he was stopped and searched.

The officers found inside his underpants a plastic bag containing 12 transparent bags which the defendant admitted contained “Kchai” (or ketamine) which he said he was going to take to other people.

The ketamine content in these bags weighed 120 grammes and it was this quantity which was the subject of the 2nd Charge.

The defendant had two keys on him. These fitted the door of the flat from which he had just emerged. Inside the flat were found largequantities of cocaine and ketamine together with numerous utensils to show that the flat had been used as a factory for the purposeof manufacturing cocaine.

All told, insofar as it concerns the seizure of dangerous drugs from the flat, the Customs officers found a solid containing 636.04grammes of cocaine, 52.6 grammes of cocaine hydrochloride together with powder containing 262.02 grammes of ketamine. These drugswere the subject of the trafficking allegation in the 3rd Charge.

The estimated street value of all the cocaine seized was just over $757,000 and the combined value of the ketamine in Charges 2 and3, was just over $59,000.

The flat, although designed for ordinary domestic purposes, was examined by Dr Lo Chang-fan, a Government Chemist, who found clearevidence from the paraphernalia and chemicals that he looked at in the flat, and from his subsequent laboratory findings, that cocainebase or what is called ‘crack’ was being manufactured there. And it is the manufacturing which formed the subject of the 1stCharge admitted by the defendant.

Now, Dr Lo, in his report explained – and I am simply going to summarise it – that cocaine is a psychoactive substance commonly foundin two chemical forms. There is cocaine base which is usually made for smoking purposes and cocaine hydrochloride which is the commonsalt form of cocaine usually taken by snorting.

Dr Lo stated that the prevailing practice in Hong Kong in manufacturing, so far as cocaine is concerned, involves the conversion ofcocaine in the hydrochloride form into the base form which is a process commonly referred to as ‘cracking’. And it follows fromthis that Dr Lo found an abundance of evidence to demonstrate that the defendant was engaged in such a process.

Later when the defendant’s home address in Kwun Tong was searched, there was no trace of any kind of drug or paraphernalia connectedwith making the drugs. However, the officers were able to find the tenancy agreement and various bills relating to the Castle PeakRoad flat where the manufacturing of dangerous drugs had been taking place.

The defendant is now aged 23. He is apparently not a drug abuser himself and he has no previous record for any offence which has anyrelevance to this case.

It is almost incomprehensible that someone like this defendant, who has been given every chance in life, with a really supportivefamily and numerous friends who have all written letters of support today, could risk everything for the money to be made out ofthis filthy trade.

The damage done to society and the families whose lives are ruined by drug abusers in their midst is too well known to need repeating.There is really no mitigation in a case of this gravity. Everyone in Hong Kong knows that the sentencing for cases of this type isextremely heavy. It is intended to be a deterrent to others but it was no deterrent to you at all.

The only mitigation in this case is that you have pleaded guilty and you will, of course, receive the full credit on this account.

There are clear guidelines for the sentencing of traffickers of ketamine and cocaine. Now, the cocaine in this case weighed just over688 grammes, a quantity, which alone, under the guidelines in HKSAR v Abdallah [2009] 2 HKLRD 437 at 453, carries with it a sentence of at least 20 years.

The ketamine in Charges 2 and 3, taking their combined quantity of 382 grammes, if standing alone, would carry a sentence, under theguidelines in The Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1 at 30, of at least 9 years’ imprisonment.

The fact that the defendant was manufacturing base cocaine is clearly an aggravating factor. As the Court of Appeal said in R v Cheung Wai Kwong [1997] 3 HKC 496 at 501:

“Manufacturing is undoubtedly much more serious than trafficking or possession of dangerous drugs. A person involved in the manufacturingprocess is clearly nearer to the source of evil than a trafficker. He deserves a heavier sentence.”

In all the circumstances, the starting point which I shall take on the 1st Charge of manufacturing will be 23 years

imprisonment. This will be reduced by a third making a sentence of 15 years and 4 months’ imprisonment.

The starting point on the 2nd Charge of trafficking in 120 grammes of ketamine will be 7 years’ imprisonment reduced to 4 years and8 months to reflect your plea of guilty.

On the 3rd Charge, for the large quantity of cocaine and ketamine, I will take a starting point of 21 years’ imprisonment, reducedto 14 years for your plea.

These sentences will run concurrently to themselves and also to the sentence on Charge 1 so that the sentence you will serve willbe one of 15 years and 4 months’ imprisonment in total.