HKSAR v. TAM MAN TO

DCCC 429/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 429 OF 2012

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REASONS FOR SENTENCE

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1. The defendant has pleaded guilty to an offence of trafficking in 4.46 grammes of a crystalline solid containing 4.25 grammes of methamphetamine hydrochloride, namely ice, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.

2. Facts admitted by the defendant disclose that at around 7.40 p.m. on 10 March, 2012, police officers patrolling at 15^th floor, Tin Mei House, Tin Ping Estate, Sheung Shui, saw the defendant walking out of his home towards the rear staircase in a furtive manner. He was intercepted at the staircase for inquiry. Upon search, a plastic bag containing 6 packets containing the dangerous drugs the subject matter of the present charge, as well as a plastic spoon an electronic scale and a plastic bag containing some empty resealable plastic bags were found from the defendant’s right front jacket pocket.  3 mobile phones were found from his left front jacket pocket. The defendant was arrested and cautioned and said under caution that he intended to hide the ‘ice’ and he would take it out for sale to others upon request.  In a subsequent video recorded interview under caution, he said he had purchased the dangerous drugs in question at around 4 to 5 p.m. on 10 March, 2012 for HK$2,000. He sold the dangerous drugs to customers who would call him to order the drugs, and after he received payment, he would instruct his customer to pick up the drugs from a designated hiding place. He sold the drugs at HK$3-400 per gramme.  The plastic spoon found was for separating the dangerous drugs and the electronic scale was for weighing the dangerous drugs, while the empty resealable plastic bags were for packing the dangerous drugs. Two of the three mobile phones found from him were for receiving calls from customers who wanted to buy dangerous drugs from him.  The estimated street value of the dangerous drugs seized was HK$4,307.00. The dangerous drugs seized was examined by a government chemist and confirmed to be a total of 4.46 grammes of a crystalline solid containing 4.25 grammes of methamphetamine hydrochloride.

3. As Mr Yeung, counsel for the defendant rightly said, the tariff for trafficking in “ice” was laid down in AG v Ching Kwok Hung [1991] 2 HKLR 125 and corrected in HKSAR v Capitania CACC 28/2004 (unreported). For trafficking up to 10 grammes of “ice”, a term of imprisonment of between 3 to 7 years is called for.

4. The defendant is now aged 28 years.  His criminal record dates back to 1998. He has 8 previous convictions in 4 court appearances. Although he has no previous convictions for trafficking in dangerous drugs,  he had 2 previous convictions in 2008 for possession of dangerous drugs, for which he was sentenced to the DATC.  For his most recent convictions, which were in 2009 for offences of forgery of documents and other driving offences under the Road Traffic Ordinance, Cap 374, as well as using a motor vehicle without third party insurance (Cap.272), he was fined for some offences and sentenced to the DATC for others.

5. Although Mr Yeung had indicated that he did not take issue with the contents of the Antecedent Statement, which states the defendant is single, he submitted in mitigation that the defendant is married but separated from his wife. In my view, whether he is single or separated is of little consequence for offences of this nature.  Mr Yeung submitted that the defendant’s mother, in her 50’s, was in court today to show her support for the defendant.  His father is aged 65 years. Both parents depend upon public assistance. He has two sisters, both of whom are married. He worked as a delivery worker for IKEA prior to his arrest for the present offence, earning $10,000 a month.  Mr Yeung submitted that the defendant was not a drug dependant, although he took drugs occasionally for fun.

6. The defendant admits that he was in possession of the drugs in question for trafficking, although in mitigation counsel for the defendant submitted that a half would be for his own consumption, while half was for sale to others for a small profit. Counsel for the prosecution does not accept that some of the dangerous drugs could be for the defendant’s own use. He submits that upon his arrest, the defendant made no mention that any of the drugs was for self-use. Under caution at the scene, he said he was hiding the drugs and would take them out upon request by others for sale. In the subsequent video recorded interview under question, he again made no mention that any of the drugs were for self-use – he mentioned when he had bought the drugs and for how much, and his mode of sale and even the use of the electronic scale, the spoon, the resealable plastic bags and the mobile phones found upon his person upon search. Defence counsel submitted that the defendant was not a drug dependant, and he only took drugs occasionally for fun. If he was not a drug dependant and regularly taking dangerous drugs, why would he keep as much as half of the dangerous drugs he had bought for self-use. I do not accept that as much as half would be for self-use, although I accept that he might use some of the drugs for himself. It would be difficult to differentiate what would be for self-use.

7. In HKSAR v Chow Chun Sang, CACC 135/2011, Hon Yeung VP, in delivering the judgment of the Court, said :-

“19. We are of the view that in drug trafficking cases, when all or part of the drugs are intended for the trafficker’s own consumption, the ensuing discount to sentence should, depending on the circumstances, fall somewhere between 10% and 25% of the basic starting point. In determining the extent of the discount in a particular case, the court should have regard to factors including the total quantities of drugs involved, proportion of the drugs intended for self-use, the nature of the drugs, whether the drug trafficking was for financial gain, whether the trafficking was organized and premeditated, and the background and criminal record of the defendant.”

8. The sentence follows the quantity of drugs.  That would put the quantity in the defendant’s possession for trafficking at the material time to be 4.25 grammes of methamphetamine hydrochloride, namely ice. This would warrant a starting point of 4 ½ years imprisonment.

9. I have taken into account that the defendant is an occasional drug user and that some of the drugs would have been for his own consumption.  There was no direct evidence of sale of any drugs. I have also borne in mind the latent risk of the drugs for self-consumption falling into the wrong hands.  The quantity of drugs in not insubstantial.  Two of the three mobile phones found on him was for drug users to contact him to buy dangerous drugs from him.  He had a spoon to separate the dangerous drugs, electronic scales to weigh the dangerous drugs and empty resealable plastic bags to pack the dangerous drugs for sale – clearly, the trafficking was organized and premeditated, and for financial gain.  He has a criminal history, including for drugs related offences.

10. Looking at those features of the case, I have decided that the appropriate starting point for this offence is one of 4 years’ imprisonment.

11. The defendant has pleaded guilty and he is entitled to a discount of one-third to reflect that. That is the only mitigation of weight before me. Giving the defendant full credit for his plea, which in my view is the only mitigation of weight before me, the defendant is sentenced to 2 years and 8 months’ imprisonment.