HKSAR v. TAM LING YUEN

HCCC 133/2018

[2018] HKCFI 1975

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 133 OF 2018

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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 to one charge of trafficking in a dangerous drug and another charge of possession of a dangerous drug at the Eastern Magistrates’ Courts on 23 April 2018. Before me, she confirmed her pleas and accepted the Summary of Facts. Briefly, shortly after midnight on 19 January 2017, the defendant was spotted by the police to be acting suspiciously in Jordan Road, near Parkes Street. The defendant was then tailed and was eventually intercepted for a search.

As a result, five plastic bags containing a total of 13.39 grammes of a crystalline solid containing 12.43 grammes of methamphetamine hydrochloride, and two other plastic bags containing the two tablets particularised in the possession charge were found inside a resealable plastic bag which was kept under the defendant’s shorts. Further, she was found to carry an electronic scale. As regards the recycle bag which the defendant was carrying at the time, there were a few boxes and a metal can which contained a total of 13 plastic bags. Inside those bags were a total of 99.77 grammes of a crystalline solid containing 86.21 grammes of methamphetamine hydrochloride.

Also found from the recycle bag was a metal box with a plastic bag which contained 0.43 grammes of a plant mixture containing 0.34 grammes of herbal cannabis. This cannabis is particularised in the possession charge. Moreover, 15 resealable plastic bags were found inside one of the paper boxes. In total, 113.16 grammes of a crystalline solid, containing 98.64 grammes of methamphetamine hydrochloride were seized from the defendant, and this is the subject matter of the trafficking in a dangerous drug charge. As for the defendant’s handbag, one notebook, two mobile phones with three SIM cards and cash, $322.10 were found.

Under caution, the defendant claimed that she would earn a little money by giving the ‘Ice’ to her friends, while some of the drugs were for her own consumption. The defendant later attended two video-recorded interviews with the police. During the interviews, she said that about half a month ago, she purchased five plastic bags of ‘Ice’, kept under her shorts, for HK$10,000 from a Chinese female, and after the purchase, she consumed 1 gramme per day. The ‘Ice’ would not be kept at home as she was living with her family. When she went out, she would take the drugs out with her. The defendant also claimed that she bought the seven packets of ‘Ice’ inside the metal can for about HK$10,000, and that some of the ‘Ice’ seized was given to her free of charge.

As regards the tablets, she said that those were given to her by her friends. The defendant added that she purchased a larger quantity of ‘Ice’ in one go because it was cheaper. Further, the defendant revealed during the interviews that she was unemployed at the material time and that she had not worked for a while. The cash of HK$300-odd was given to her by her family members.

The estimated market value of the dangerous drugs seized was HK$32,650.

The defendant’s background and Mitigation

The defendant is aged 25 and is single. She was born in Hong Kong and has completed Secondary 3 here. As admitted under caution, the defendant was unemployed at the time of her arrest. The defendant has got seven previous criminal convictions. Two of those were possession of a dangerous drug in respect of which she was sentenced in August 2011 and May 2012 to probation order and to DATC respectively. She has also got two trafficking in a dangerous drug convictions in respect of which she was sentenced in June 2012 and May 2015 to 8 months and 58 months’ imprisonment respectively.

The latter term of 58 months was subsequently reduced to 54 months on appeal and she was released in October 2016. In mitigation, Mr Cheung for the defendant, told the court that after her release from prison in October, the defendant worked as a karaoke receptionist for one month in November 2016. She then quit the job due to her health problem. Thereafter, and at the time of her arrest in January 2017, she remained jobless. Mr Cheung said that the defendant was addicted to drugs since she was 14. She claimed that for two years from then, she was given drugs free of charge by her friends.

After the defendant completed her Form 3 education, she worked as a waitress and a salesgirl on and off, and she used her income to feed her drug habit. Letters written by the defendant herself, her family members and church representatives with whom the defendant has had contact were given to the court. In short, the defendant herself and the other all emphasised the defendant’s genuine remorse. As to the drugs in question, Mr Cheung said his instructions were that about one-third of the ‘Ice’ was for the defendant’s own consumption.

In support of this claim, Mr Cheung invited the court’s attention to the positive result of amphetamine of the defendant’s urine test conducted shortly after her arrest. Mr Cheung also provided a document to show that the defendant got repaid her insurance premium of HK$58,000 in December 2016, and she therefore had the financial means to purchase a large quantity of drugs for consumption. In the course of hearing the mitigation, I had asked to examine the various boxes and the metal can which contained the drugs as the defendant claimed under caution that she had to take the drugs away from home whenever she went out.

On examination, the boxes were found to be of different sizes and different outlooks. For example, the cover of one box was said to contain an eye treatment pack, while another was said to contain a USB socket. There was also one which was said to contain an ear plug and indeed such was found, although three plastic bags of ‘Ice’ were concealed underneath the plastic compartment which held the ear plug.

Since the Summary of Facts clearly pointed to a case of someone caught having in her possession the drugs for the purposes of unlawful trafficking, with an electronic scale and a bundle of resealable plastic bags in hand, and since the boxes and the metal can were not tiny items which could be carried around with ease, and that the drugs were differently packaged, differently concealed and with different purity levels, I told Mr Cheung that I was, at that stage, not prepared to accept that the defendant had purchased the drugs in one go, intending any significant proportion for her own consumption.

I also pointed out to Mr Cheung that the positive urine test result per se was not determinative of the claim for self‑consumption albeit that it was certainly one of the factors to be taken into account by the court when deciding whether any significant proportion of the drugs in question might be for the defendant’s own consumption. In this connection, it is my experience that when asked on what basis the defendant is making a claim for self-consumption, defence counsel usually just rely on such urine test results, and the fact that the defendant has got previous possession of a dangerous drug convictions, without making any particular references to the facts of the case on hand.

Time and again I have to reiterate that while those are relevant factors for consideration of the matter, those are not the be all and end all. If not, it would mean that a previously convicted drug addict who has taken drugs on the day of or shortly before his arrest could easily get a sentence reduction based on a claim for self-consumption. This is not what the authorities in this area were about as I understand them. The central issue is not whether the defendant is a drug addict, but whether it might be true that the defendant had a significant proportion of the drugs in question for self-use.

If it were otherwise, and if reductions were to be generally given to a drug addict whenever a claim for self-use is uttered, it would mean that a drug addict defendant would be better off than a defendant of previous good character or a young defendant who commits the offence of trafficking in a dangerous drug, because even in the case of a young defendant, unless extreme youth is shown, that itself is not a mitigating factor.

Coming back to the present case, after I had made my indication, I then asked Mr Cheung if there would be further evidence adduced before me to support the defendant’s claim for self-consumption, or if there would be further submissions.

Mr Cheung replied that he required to obtain further instructions, and I then adjourned the matter for a while. When the hearing resumed, Mr Cheung confirmed that the defendant would not be giving evidence in the witness-box, but that his instructions were that apart from one blue and silver paper box that contained the drug which was given to the defendant free of charge, all the rest of the ‘Ice’ was purchased by the defendant in one go about half a month before her arrest for HK$10,000.

As to why the drugs were differently packaged and differently concealed, Mr Cheung said according to the defendant, they were in such forms when she purchased the drugs, other than the drugs in the metal can which she admitted to have repacked the same into the metal can. The defendant did not check and did not know why a bundle of empty resealable plastic bags and the ear plug were given to her, said Mr Cheung. In short, the defendant maintained that she had about one-third of the ‘Ice’ in question for self-use.

Tariffs and Sentencing Guidelines

The revised tariffs for trafficking in ‘Ice’ were laid down in the case of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691. For trafficking between 70 and 300 grammes of ‘Ice’, a term of imprisonment of 11 to 15 years is called for. As for the offence of possession of a dangerous drug, in HKSAR v Mok Cho Tik [2001] 1 HKC 261, the Court of Appeal observed that the starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months.

Sentencing in this case

Having considered the amount of ‘Ice’ involved in the trafficking in a dangerous drug charge, and the facts of this case, I am going to adopt a starting point of 11½ years. That is, 138 months for the trafficking in a dangerous drug charge. The defendant pleaded guilty at the committal stage. She would be given the one-third reduction for her plea. However, according to the records, various adjournments were sought by the defence when the case was in the Eastern Magistrates’ Courts, and therefore, the defendant’s plea was only taken in April 2018, more than 15 months after her arrest. This was not a short period of time and it would of course be to the benefit of both parties, and would save much court time if the defendant’s plea could be taken earlier.

Now, as to the defendant’s claim that about one-third of the ‘Ice’ in question was for her own use, for the following reasons, I completely reject that any significant part of the ‘Ice’ would be for her own consumption.

(1) The boxes and can which contained the drugs were rather bulky. If the defendant had intended one-third of the ‘Ice’ for self-use, she could have easily extracted the drugs from the boxes and can and stored the drugs in a secret place at home. Carrying such bulky items around did not make sense. Without any further evidence and based on the facts before me, I do not accept the defendant’s claim. This is particularly so as the defendant alleged that she had bought the drugs in one go about half a month ago. In other words, if what she said was true, she had been carrying the drugs around for some time, but the exhibits which I examined did not show any such signs.

(2) The drugs were packed in different plastic bags and concealed inside different boxes. Some were larger packs, some were smaller. The purity level also differed. If the drugs had been purchased by the defendant in one go, I do not see why there would have been the need to so package the drugs. Even more surprising was the defendant’s claim that she did not conduct any check on the drugs at the time. If one were to spend HK$10,000 for one purchase, one would naturally be concerned as to what he was going to get. On the facts admitted, I am sure that the different bags of drugs were for delivery to others, rather than having one-third of the drugs for the defendant’s own consumption.

(3) The defendant was jobless at the time and she had just been shortly released from prison. According to her, the HK$300-odd cash was given to her by her family members. Given the defendant’s financial situation, I do not accept that she had the means to purchase one-third of the drugs in question in one go for her self-consumption. As regards the refund of the insurance premium, all that the court has been provided was a statement or a copy statement purporting to have calculated the sum payable. Without any evidence on this, I am not satisfied that any part of that sum, if it was paid, might have been used for purchasing the drugs in question.

(4) The estimated street value of the drugs was about HK$32,000. The defendant said she purchased them for HK$10,000. While it might be that bulk purchase would result in a lower price, without any evidence, I am not prepared to accept that the defendant could get the drugs at less than one-third of the market value.

(5) In any event, even assuming that the defendant could purchase the drugs at that reduced price of HK$10,000, her alleged consumption of 1 gramme of ‘Ice’ per day would mean that she had to spend HK$3,000 each month in order to feed her drug habit. As mentioned, the defendant was jobless, and the HK$300-odd cash found on her at the time of arrest was given to her by her family. In these circumstances, I completely reject that the defendant would consume that quantity of ‘Ice’ as she claimed.

In short, I do not consider the defendant to be entitled to any reduction because of this claim for self-consumption. Now, while it might well be that the defendant would have a small portion of the drugs for her own use, but as pointed out in the case of HKSAR v Wong Suet Hau, simple possession of a dangerous drug is itself an offence which would call for a term of imprisonment. In the case of this defendant, there is also the latent risk factor to be taken into account. Therefore, even assuming that there might be a small amount of the drugs in question which the defendant kept for her own consumption, that would not affect the sentence in this case in any material way.

Hence, other than the defendant’s plea, there is nothing in this case which would warrant any discount in sentence. At the time of the commission of the present offence, the defendant had just been released from prison for about three months for another trafficking in a dangerous drug offence. Given her two previous trafficking in a dangerous drug convictions and this short time gap of her repeat offending, I have considered whether the sentence should be enhanced in this case.

However, having read the letters submitted and after considering all the relevant circumstances, I am persuaded that her previous convictions should not be treated as an aggravating factor for the present case. In the circumstances, I am not going to enhance the sentence.

For the trafficking in a dangerous drug charge, 138 months reduced by one-third is 92 months’ imprisonment. For the possession of a dangerous drug charge, since the drugs involved were of a relatively insignificant amount, I consider that a starting point of 3 months is appropriate. Again, a one-third reduction would be given to the defendant for her guilty plea; 3 months reduced by one-third is 2 months’ imprisonment. These are separate offences and in principle, the sentences should be served consecutively.

However, having considered the totality principle, I take the view that an overall sentence of 92 months should sufficiently reflect the defendant’s overall criminality in this case.

As such, I order that both terms in respect of the 1st charge of trafficking in a dangerous drug and the 2nd charge of possession of dangerous drugs are to run wholly concurrently, resulting in a total term of 92 months’ imprisonment.