HKSAR v. TAM HOI YAN

HCCC 34/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 34 OF 2014

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

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COURT: Background and the facts.

The defendant pleaded guilty before me to one count of possession of a dangerous drug and one count of trafficking in a dangerous drug.

Briefly, the defendant was stopped by the police on 10 September 2013 when she was on Yen Chow Street, Kowloon. During a search conducted on the defendant’s bag, the police found a metal can and from inside the can, they discovered the drug particularised in the first count, that is, a total 1.72 grammes of a powder containing 1.36 grammes of ketamine.

Under caution, the defendant stated that the drug was for her own consumption. This is the subject of the first count.

Later, the police found a white plastic bag inside the defendant’s bag. From the plastic bag, the police seized six transparent resealable plastic bags which had the drugs particularised in the second count, that is, 80.8 grammes of a crystalline solid containing 78.01 grammes of methamphetamine hydrochloride, commonly known as “ice”.

Under caution, the defendant claimed that she was carrying the drug for her friend and would pass the drug back on her friend’s return.

During a subsequent video recorded interview, the defendant repeated her admissions and provided further particulars. The estimated street value of the ketamine was about HK$200, while that of the “ice” was about HK$51,000.

Mitigation

The defendant is aged 34 and is single. She was educated up to Form 2 level. The defendant had worked as a waitress since leaving school, but she was unemployed three months before her arrest. The defendant was convicted of one count of theft in 1999 and was sentenced to 80 hours of Community Service Order. As indicated to Mr Kwan, I would not take the defendant’s record into account when sentencing the defendant.

In mitigation, a letter written by the defendant was handed to the court in which she said that she started her drug habit under the influence of her friends. She now regrets what she has done and she says that she now treasures the family support that she has got. In short, the defendant asks for a lenient sentence.

Further, Mr Kwan urged this court to accept that part of the “ice”, that is one packet, was for the defendant’s own consumption on the following basis: firstly, it is evident from her admission that the defendant was an “ice” addict herself; further, Mr Kwan relied on the fact that the defendant’s urine test was “ice” positive when examined after her arrest; Mr Kwan also told the court that the defendant’s version was that one packet of the “ice” was her reward for carrying the other five packets.

During the mitigation stage and after hearing Mr Kwan’s submissions on this aspect, I indicated that at the time I was not intended to accept the defendant’s claim concerning self-consumption and asked whether Mr Kwan would further substantiate the defendant’s claim. In reply, Mr Kwan said that the defendant did not wish to give evidence on this and that he would rely on the basis already mentioned to the court.

Sentencing Considerations

Firstly, concerning the defendant’s claim that part of the “ice” was for her own consumption, my observations are these:

(a) Although the defendant admitted under caution that she was an “ice” consumer and although it was reported that her urine test after arrest was “ice” positive, the “ice” found by the police was in the region of 80 grammes of a crystalline solid containing 78 grammes of “ice”. That was a huge amount;

(b) Given the estimated street value of the “ice”, that is, in total about HK$51,000 and that the defendant was unemployed at the time of her arrest, she definitely would not have the financial means to purchase any large amount of the “ice” for self-consumption;

(c) Concerning the defendant’s claim that one packet was her reward, I notice that at the time of seizure, the “ice” was kept in six similarly packaged transparent resealable plastic bags which were stored in two other plastic bags and put in the defendant’s bag. From my observation, there were no obvious differences in respect of the six packets, whether in terms of packaging, the place of storage and the quantity of “ice” in each packet. In other words, each packet was worth slightly over HK$8,000 in the market.

Given these circumstances, I do not accept that the defendant would have been given one packet as a reward for her carrying the other five packets. Moreover, as I have mentioned, when the defendant was stopped, she was carrying the whole lot of “ice” as one item in her bag and was walking in the streets of Sham Shui Po, nowhere near her home. When all these matters are considered, I do not accept that part of the “ice” or one packet of the “ice” was for the defendant’s own consumption or was a reward for her.

Therefore, I reject that any significant amount of the “ice” found was for the defendant’s own consumption. Even if it might be that the defendant would have a small amount of the “ice” she carried for herself, no doubt, the possession of a dangerous drug itself carries with it a term of imprisonment. All in all, in this case, I do not consider this self-consumption claim would meaningfully affect the sentence and I do not see any basis for reduction because of this claim (see HKSAR v Wong Suet Hau & Anor [2002] 1 HKLRD 69).

Now, in respect of the first count, the quantity involved was 1.36 grammes of ketamine. In HKSAR v Mok Cho Tik [2001] 1 HKC 261, the Court of Appeal stated that for simple possession of a quantity of drugs which a bona fide user would normally have in his possession would be in the range of 12 to 15 months’ imprisonment. Further, an enhancement would be required should there be the latent risk factor.

In this case, given the amount involved and the facts disclosed, I adopt 12 months as the initial starting point for the first count.

Given that the defendant was unemployed at the time; that she was carrying the ketamine with her while on the street; and that she was trafficking in another lot of “ice” when she was arrested, I consider there to be a real risk that the ketamine seized from her bag would find its way to the hands of others. I therefore enhance the starting point by 3 months to take account of this latent risk factor.

Thus, the overall starting point for the first count is one of 15 months.

The tariffs for trafficking in “ice”, that is, the drug concerned with the second count, were laid down in AG v Ching Kwok Hung [1991] 2 HKLR 125 and corrected in HKSAR v Capitania CACC 28/2004, 11 August 2004, unreported. For trafficking between 70 and 300 grammes of “ice” a term of 10 to 14 years’ imprisonment is called for.

Recently, the above guidelines were revised by the Court of Appeal in the case of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691 and the revised term is one of 11 to 15 years’ imprisonment for this band. However, as the new guidelines are only applicable to offences committed after the date of the delivery of the judgment, I will follow the old guidelines in this case.

Having considered the amount of “ice” involved and the facts of this case, I am going to adopt a starting point of 10 years for the second count.

The defendant pleaded guilty and she will receive a one-third reduction in sentence. Other than that, there is nothing which would warrant any further reduction in sentence.

For the first count, 15 months, reduced by one third is 10 months’ imprisonment.

For the second count, 10 years reduced by one third is 80 months’ imprisonment.

(Discussion between court and counsel)

COURT: 10 years reduced by one-third is 80 months’ imprisonment. If I were to order both terms to run consecutively, this would mean that the defendant would have to serve a total term of 90 months and this would be a term longer than the one which she would be sentenced if she was trafficking in both lots of drug.

Therefore, applying the totality principle, I order that both terms are to run wholly concurrently, resulting in a total term of 80 months’ imprisonment.