HKSAR v. TAN BOON CHYE also known as CHEN WENCAI

DCCC 978/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 978 OF 2015

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Reasons for Sentence

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1.  The defendant, Mr Tan, has pleaded guilty to two offences, first being trafficking in a dangerous drug and the second being possession of apparatus fit and intended for ingestion of a dangerous drug. The facts have been agreed. I convict the defendant in respect of both offences.

2.  The facts provide the basis for sentencing. They show that on 8 August last year, that is 2015, the defendant was travelling on a Singaporean passport, arrived in Hong Kong International Airport on a flight from Brunei, and he was planning for onward travel by a ferry to Shekou, and his luggage would have been transited towards the ferry. 

3.  The two bags belonging to the defendant were inspected by Customs officers, and on initial inspection, a positive reading for ketamine was detected.  Following that was a further search of the defendant’s bags.  No illegal substance was discovered.  The defendant was searched, and his rucksack was found to carry a plastic bag containing a white powder substance and a plastic straw.  The test on the powder substance came back positive for ketamine. 

4.  The defendant was arrested and cautioned.  He admitted to ownership of the substance which was ketamine, claimed it had been given to him in Brunei, and after taking it, he would get high.   

5.  A body search was conducted on the defendant, and that is where the drugs were found contained in the defendant’s underwear. The first item was Exhibit P5 which was the plastic bag containing white powder substance which was given the exhibit label of P4, which is 19.6 grammes of a powder containing 12.7 grammes of ketamine.  Secondly, 156 tablets were found, and they contained 1.09 grammes of a drug called nimetazepam.  Thirdly, 111 tablets were found in a plastic bag.  They contained 0.80 grammes of nimetazepam.  Finally, one tablet was found in a plastic bag, and that contained 0.12 grammes of MDMA.

6.  The defendant was subsequently cautioned.  He admitted that he had been given the drugs by friends for consumption while he was in Brunei.  The quantity could last a whole year.  They were for his own use.  He would use the straw, which is Exhibit P2, to ingest the ketamine, having mixed it with water.

7.  The defendant admits to trafficking in the drugs, and they had an estimated street value of $13,583.

8.  As far as the charge is concerned, the 1st charge concerns trafficking in 14.61 grammes of ketamine. Additionally, 267 tablets containing 1.89 grammes of nimetazepam and 1 tablet containing 0.12 grammes of MDMA.  The apparatus fit and intended for the consumption of a dangerous drug was the plastic straw which was fit and intended for the ingestion of the dangerous drug ketamine.

9.  Those are the facts admitted by the defendant on the basis of which he has been convicted.

10.  As far as the defendant’s antecedents are concerned, he is, as I understand, a resident of Singapore.  He has a clear record in Hong Kong.  He has declared himself to be a drug abuser in his antecedents.  That is confirmed by other evidence that I have before me.  

11.  The defendant has a history of psychiatric illness.  As a result of that, I obtained psychiatric reports on him.  They provide some background details which are also helpful. 

12.  His father is in Singapore and has dementia and Parkinson’s disease.  There is also mental illness amongst his relatives.  The defendant studied at O‑levels and has worked as a mechanical maintenance worker in the past two years.  He is married and he has two children who are aged 8 and 6. 

13.  As far as his history of substance abuse is concerned, the defendant has been a chronic drinker for a few years with the dependence features.  He is found to be dependent on benzodiazepine for mood and sleeping problems.  He says he has been taking methamphetamine for a few years, and he now takes ketamine occasionally, one or two times a week to relieve his anxiety. 

14.  The opinion of both the psychiatrists who examined the defendant say that the defendant suffers from a depressive disorder, ketamine abuse and alcohol and dependence syndrome.  He has been receiving psychiatric treatment in Hong Kong since November 2015 at the Siu Lam Psychiatric Centre.  His mental condition has improved.  He has a stable medical condition and does not require psychiatric in-patient treatment but requires continuation of outpatient management.  He is, I am told, mentally fit to plead and also to serve any ordinary sentence as deemed appropriate by the court.

15.  The basis on which the defendant enters the plea for trafficking, as I understand it, is on the basis that he imported the drugs into Hong Kong but he maintains before this court that the drugs were for self‑consumption.  Of course, importation of the drug is a form of trafficking.

16.  There is in the case certainly evidence that the defendant is an abuser of drugs and would consume the drugs.  Also the way in which the drugs were packaged and carried is also suggestive that he was taking them through Hong Kong into China in order to consume them himself.  There is in fact a method of consuming the drug on his person.  The quantity of drug itself is not a sufficient quantity to reach the irrevocable conclusion that the drugs must have been for distribution.

17.  The drugs in question are ketamine, nimetazepam and MDMA.  There is a guideline sentencing for the drug ketamine, trafficking in the drug ketamine, and also the drug nimetazepam is to be treated on the same basis of ketamine.  The MDMA is of a small quantity and does not necessarily affect the approach to sentencing.

18.  As far as sentencing in quantities of ketamine is concerned, the determination of sentence is set out in the case of Secretary for Justice v Hii Siew Cheng which is a Court of Appeal case of 2007 which set out new guidelines for sentencing after trial for traffickers in ketamine. 

19.  The relevant category in this case is the category of 10 to 50 grammes, and that is 4 to 6 years’ imprisonment because here we are dealing with a quantity of 14.61 grammes of ketamine and the additional quantity of 1.89 grammes which gives a figure of something like 16 grammes in total of narcotic to be dealt with. 

20.  In this case, one is required to derive a starting point based on the quantity of drug for the 1st charge.  Having considered all the factors available, and there is no reason for me to at this stage demur from the starting point set out by the case of Secretary for Justice v Hii Siew Cheng after that starting point has been determined, and of course one has to consider the effect of the self-consumption of the drug and the fact that they were brought into Hong Kong, and the plea of guilty.  So the charge of trafficking is on the basis of importation combined with self-consumption.

21.  The quantity of drug here or narcotic that I will be dealing with is something, as I said, in the region of 16-odd grammes, placing it in the region of 10 to 50 grammes.  The defendant is of clear record, and I consider it is important to reflect that.  What I should do is take a starting point of sentence on the 1st charge which is at the lowest point on the tariff.  That is 4 years’ imprisonment.

22.  I must now consider the mitigating factors in respect of Charge 1 which will reduce the starting point before I take into account the defendant’s plea of guilty.  Now, the major mitigating factor in this case is defendant’s professed self-consumption of the drug.  As I said, that is something that I will take into account.  More recent Court of Appeal cases have said that that heading of mitigation can reduce the original starting point by between 10 to 25 per cent.

23.  I consider that having regard to the fact that the defendant would consume the drug himself and to the fact that he has pleaded guilty to this charge on the basis that his importation of the drug is the basis for trafficking, I consider a further discount of 25 per cent from the figure of 4 years should be given to the defendant on the 1st charge.  That leaves now a starting point for sentence of 3 years’ imprisonment.  The defendant is entitled again to a further reduction of one-third for his plea of guilty.  That leaves a sentence on the 1st charge of 2 years’ imprisonment.  

24.  On the 2nd charge, there is no guideline sentence for this.  I shall take a starting point of 9 months’ imprisonment, reduce that to 6 months’ imprisonment for the defendant’s plea of guilty. 

25.  These charges are obviously connected and arise out of the same incident of importation of the drug.  I shall order the sentence to be served concurrently.  That means a total sentence for these two offences of 2 years’ imprisonment.