COURT: The defendant, Tam Sing-tim, pleaded guilty to one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134 and was committed to the Court of First Instance of the High Court for sentence.
Summary of Facts
On the day in question, defendant was seen by uniformed police officers patrolling Argyle Street, Mong Kok. The defendant was carrying a sling bag and at the sight of uniformed police officers, the defendant appeared nervous and tightly pressed his sling bag with his right hand.
When the defendant was intercepted, upon search of the defendant’s sling bag, a coin pouch was found. Inside the coin pouch, the following were found:
(1) a resealable plastic bag containing nine resealable plastic bags of which contained white crystals;
(2) two pieces of tissue paper wrapping a resealable plastic bag which contained white crystals; and
(3) a resealable plastic bag containing two pieces of paper, both of which wrapped white powder.
The police officers asked the defendant what the coin pouch contained and the defendant replied “pork”. When asked what “pork” was, the defendant said it was ‘Ice’. When asked why there were so many bags of them, the defendant remained silent.
Upon search of the defendant, cash of $10,178 were found. The police officer asked the defendant what his occupation was and the defendant said he was unemployed. When asked why he carried so much cash, the defendant remained silent.
The defendant was arrested and remained silent under verbal caution at the scene. He also remained silent under caution in the subsequent video-recorded interview.
The government chemist confirmed that there were altogether a total of 22.4 grammes of a crystalline solid containing 22.3 grammes of ‘Ice’ and there was 0.26 grammes of a mixture containing 0.22 grammes of heroin hydrochloride.
The total estimated street value of all the drugs was $15,542.12.
The defendant admitted that he possessed the dangerous drugs seized at the time for the purpose of trafficking.
Background and Mitigation
According to the antecedent statement, the defendant was born in 1974. He is 50 years of age now. He is not a man of clear record. He appeared in court 14 times and had 15 convictions. Of these 15 convictions, three were for possession of dangerous drugs and two were for trafficking in dangerous drugs. The defendant was discharged from prison only on 30 June 2022. He claimed to be educated up to Form 3 level and was unemployed at the time of arrest. He claimed to suffer from hepatitis and was an abuser of ‘Ice’.
Ms Kong, his counsel, informed this Court that defendant resided in a public housing estate unit with his parents. He had a 15-year-old daughter who lives with his ex-wife. He did casual job earning about $20,000 per month.
With reference to the case of Herry Jane Yusuph, Tam Yi Chun, and Lau Tak Ming, Ms Kong submitted that the quantity of heroin is negligible here and invited the Court to disregard that and also that the defendant acted as a courier.
Ms Kong submitted the three tests, absurdity, conversion, and ratio test, all yield the same result, 5 years and 2 months, that is after giving a one-third discount. As for the aggravating factor, Ms Kong submitted that the quantity of heroin, 0.22 grammes, was relatively small and asked this Court not to enhance the sentence for reason of two types of drugs being found on the defendant. Ms Kong submitted that the defendant wished to be sentenced accordingly without enhancement. The defendant wrote to this Court asking for leniency, saying that he needed to take care of his aged parents.
My Consideration for Sentence
Trafficking in dangerous drugs is a serious offence. A person convicted of this offence on indictment is liable to be sentenced to life and a fine of $5 million. For the trafficking of 22.3 grammes of ‘Ice’, the starting point is between 7 to 11 years, that is the case of Tam Yi Chun. For the trafficking of 0.22 grammes of heroin, the starting point is between 2 to 5 years, that is the case of Lau Tak Ming.
I will now consider the appropriate sentence by incorporating the seven step approach in the case of HKSAR v Islam S M Majharul and the six step approach in the case of HKSAR v Herry Jane Yusuph.
The First Step
Due to the quantity of ‘Ice’ involved, as opposed to that of the heroin, the base drug to be used is ‘Ice’.
The Second Step
The starting point for 22.3 grammes of ‘Ice’ is 7 years and 9 months.
The Third Step
On the evidence, the defendant played the role of courier to bring the dangerous drugs to others. Bearing in mind the relatively small quantity of heroin, even though on its own, 0.22 grammes of heroin would still have attracted a term of imprisonment of 2 years. And on the basis that if all the drugs were ‘Ice’, the starting point would have been 7 years and 10 months. And having considered the result of the three tests as submitted, I am of the view that a starting point of 7 years and 9 months is appropriate, particularly when this starting point would have to be enhanced to take into account more than one drug was involved.
The Fourth Step
As already mentioned, I have to take into account the fact that two kinds of drugs were involved and I do not accept that I should disregard the 0.22 grammes of heroin here. So the starting point is enhanced by 3 months, so bringing it now to 8 years. And that is the first part of the aggravating factor.
The second part of the aggravating factors is that the defendant had three drug-related convictions, two of which were trafficking in dangerous drugs. The defendant was sentenced to 7 years and 4 months for trafficking in dangerous drugs in 2018. He was discharged on 30 June 2022 and he committed the present offence on 1 October 2022. In other words, he committed a similar offence three months after he served not an insubstantial sentence. I am of the view that an enhancement of 6 months is appropriate. This brings the starting point to 8 years and 6 months.
The Fifth Step, Mitigating Factors
The defendant tendered a timely plea and is entitled to the full one-third discount. I do not see any other grounds for further discount even though the defendant claimed that his aged parents needed his assistance. So with the one-third discount, the sentence is 5 years and 8 months.
The Last Step
Applying the total principle, I am of the view that a sentence of 5 years and 8 months is not unfair or unjustly crushing or oppressive.
The Actual Sentence
For the offence of trafficking in dangerous drugs, the defendant is sentenced to 5 years and 8 months’ imprisonment.