HKSAR v. TAM CHIU HO

DCCC 268/2023

[2024] HKDC 244

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 268 OF 2023

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REASONS FOR SENTENCE

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1.  Mr Tam pleaded guilty before me to two charges of Trafficking in dangerous drug(s), contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134.

2.  Particulars of Charge 1 are that he, on 7 October 2022, outside Block 4, Broadview Garden, No 1 Tsing Luk Street, Tsing Yi, New Territories, in Hong Kong, unlawfully trafficked in a dangerous drug, namely 5.39 grammes of a solid containing 4.17 grammes of cocaine.

3.  Particulars of Charge 2 are that he, on the same day, at Room E, 23^rd Floor, Block 4, Broadview Garden, No 1 Tsing Luk Street, Tsing Yi, New Territories, in Hong Kong, unlawfully trafficked in dangerous drugs, namely 33.8 grammes of a solid containing 26.87 grammes of cocaine and 9.15 grammes of a solid containing 6.68 grammes of ketamine.

Facts admitted by Mr Tam

Charge 1

4.  On 7 October 2022, at about 8 pm, Mr Tam exited from Block 4, Broadview Garden, Tsing Yi, furtively.  Officer on ambush duty PW1 intercepted Mr Tam.

5.  Upon body search, PW1 found one re-sealable plastic bag containing 18 re-sealable plastic bags containing 5.39 grammes of a solid containing 4.17 grammes of cocaine inside the waistband of Mr Tam’s pants.  PW1 also found 2 mobile phones, cash of $1,310, 2 keys and a resident card of Broadview Garden.

6.  Mr Tam was arrested for Trafficking in a dangerous drug.  Under caution, Mr Tam stated that he intended to sell the dangerous drug to another person for money.

Charge 2

7.  Minutes later, on the strength of a search warrant, PW1 took Mr Tam back to his residence at Room E, 23/F., Block 4 of Broadview Garden for a search. Police officers used the 2 keys found on Mr Tam to open the metal gate and main door to Room E.

8.  In a consensual house search, police found the following items in Mr Tam’s bedroom:

(a)  One re-sealable plastic bag containing 34 re-sealable plastic bags containing 33.8 grammes of a solid containing 26.8 grammes of cocaine;

(b)  One re-sealable plastic bag containing 0.42 grammes of a solid containing 0.36 grammes of ketamine;

(c)  One re-sealable plastic bag containing 11 re-sealable plastic bags containing 8.73 grammes of a solid containing 6.32 grammes of ketamine;

(d)  Cash of $5,000;

(e)  Two re-sealable plastic bags containing numerous smaller re-sealable plastic bags; and

(f)  One electronic scale.

9.  At about half-past-nine the same evening, Mr Tam was further arrested for Trafficking in a dangerous drug.  Under caution, Mr Tam stated that these dangerous drugs were likewise intended to be sold to another for money.

10.  A cautioned VRI was subsequently conducted during which Mr Tam stated:-

(a)  The cocaine found on him was to be sold to earn money for his father’s medical fees;

(b)  He was given the said cocaine and other tools by a random person in the park who claimed that he (Mr Tam)  will be rewarded $1,000 for every 24 grammes of drug sold;

(c)  He had cocaine and ketamine at his residence;

(d)  He was likewise given those dangerous drugs and other tools by a random person in the park who claimed that he (Mr Tam)  will be rewarded $1,000 for every 24 grammes of drugs sold;

(e)  He was the only person in his household who knew the dangerous drugs were placed inside the wardrobe in his room and he was the only person to have access to them;

(f)  He was waiting for instructions from an unknown person to distribute the dangerous drug he had when he was arrested; and

(g)  The electronic scale was used for measuring the weight of dangerous drugs; the spare re-sealable bags were used for packing dangerous drugs.

11.  In October 2022, the total street value of both types of dangerous drug was between about $40,000 and $70,000.

Criminal record

12.  Mr Tam has a previous clear record.

Antecedents

13.  Mr Tam is aged 24 (23 at the time of the offences), educated to tertiary level, was a part-time waiter earning $9,000 a month.  In addition, he was working as a sports coach.  He lived with his uncle in Tsing Yi.

Mitigation

14.  Mr Billy Yau of counsel mitigated on behalf of Mr Tam.  The following is a summary of the mitigation submissions.

15.  Mr Tam was educated to top-up degree level in Sport Coaching at VTC Chai Wan.  He also holds coaching certificates of different sports.  Both father (63)  and mother (53)  have health issues, with the former being more serious. Nevertheless, both are working part-time since Mr Tam’s arrest.  Younger sister (22)  is a funds broker; however, she also has some health issues.

16.  Shortly prior to the present offences, Mr Tam was employed as a Sport Coach, earning around $20,000 a month.  He was the sole-bread-winner of the family.  He gave all his salary to his mother to cover all of the family expenses including household expenses, medical expenses of his father, pocket money for his sister and mortgage payments etc.  The meagre salary of Mr Tam was hardly enough to cover all those expenses.

17.  At the material time, Mr Tam was in desperate need of money, in particular to cover the medical expenses of his father.  The financial difficulties were further compounded by social unrest and COVID-19.  It was at this juncture that Mr Tam was tempted into the drug trafficking trade.

18.  On the day of arrest, Mr Tam had received instructions to distribute the dangerous drug to the buyer.  He will be rewarded $1,000 if he successfully made it.

19.  Mr Tam is genuinely remorseful.  He promises not to re-offend.  He is a man of unblemished positive good character.  He came from a decent family.  In the past, Mr Tam spent his leisure time to do voluntary work.  He would not have fallen from grace but for the sudden deterioration of his father’s health.  The court is urged to distinguish Mr Tam from other defendants of the same crime who committed the offence simply out of personal benefits, and to afford Mr Tam with further reduction in sentence.

20.  Mr Yau submitted that Mr Tam’s role in the offences was a courier as he would not receive money from the buyer of drugs.  However, Mr Yau acknowledged that Mr Tam did package the drugs for the purpose of distribution to buyers.

21.  Mr Yau did acknowledge that the presence of two types of drug aggravated the crime but submitted that there is no evidence in this case that a combination of the two drugs would increase the potency of the mixture.

22.  It is submitted that the court should regard the two offences here as representing one occasion of possession of the total amount of drugs.  As such, in arriving at a sensible sentence, the dangerous drugs in Charge 1 and Charge 2 should be added together to arrive at 30.97 grammes of cocaine and 6.68 grammes of ketamine.

23.  It is submitted that, in the present case, the “combined approach” rather than the “individual approach” is the more appropriate approach in arriving at the realistic and fair sentence.

24.  Cocaine should be used as the base drug as it is not only more potent than ketamine but is higher than ketamine in terms of quantity.

25.  The following results are obtained for the 3 cross-checking tests:-

(a)  Absurdity test: 37.65 grammes of cocaine resulting in 85 months as starting point[1];

(b)  Conversion test[2]: 35.18 grammes of cocaine resulting in 82 months as starting point; and

(c)  Ratio test: ratio of cocaine in the total amount x 85 months + ratio of ketamine in the total amount x 65 months = 81.5 months as starting point.

26.  It is submitted that the result of the ratio test is the most realistic and is the most favourable for Mr Tam.  The court is invited to adopt the starting point of 81.5 months when considering the total sentence for Charges 1 and 2.

27.  Mr Tam’s family members are in court to give him support.  The court is urged to show leniency toward Mr Tam.

28.  Mr Yau submitted on behalf of Mr Tam a total of 10 mitigation letters all written in Chinese.  The writers were Mr Tam’s mother, his father, younger sister, uncle, long-time friend, headmasters of the kindergarten and primary school he attended, his ex-employer, two other long-time friends, and finally Mr Tam himself.  The contents generally are that Mr Tam is a filial son who cares for the family and who took part-time jobs throughout his study years to lighten the family financial burden; that he also engaged in voluntary work; that Mr Tam was a responsible and hard-working person; that he was regretful and committed the offence out of foolishness.  Most if not all of the writers asked for a chance and a lenient sentence to be given to Mr Tam so that he may re-unite with and take care of his family earlier or otherwise contribute to society.

29.  Mr Yau also submitted a number of bilingual certificates relating to Mr Tam’s achievements in various endeavours including those in Sports coaching and Practical Purchasing Management.  Also submitted were the medical records (mostly bilingual or in English)  of his parents and younger sister, some age-old salary records and employment contract of Mr Tam (all in Chinese), and a certificate of compliments for Mr Tam’s voluntary work.

Sentence

30.  Trafficking in dangerous drugs is a very serious offence.  It is well publicized in the media that those who got caught in such activities will be rewarded with heavy tariff sentences.  Economic reason is therefore no excuse for committing such level of serious offence.

31.  Often, those higher in the drug-trade hierarchy prey on people with previous good character to do their dirty job for them by perhaps selling to them the false hope that the court will somehow show mercy to those unfortunate ones that got caught.  The court must send a strong message to the community that this is not the case and that no one will be spared the condign punishment that is to follow upon conviction.

32.  The results of the cross-checking tests obtained by Mr Yau more or less coincide with those worked out by myself independently.

33.  I shall consider the two charges together and I adopt 80 months as the initial global starting point.  However, that is not the end of the matter as far as sentencing for general trafficking and for presence of cocktail of drugs go.

34.  According to HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 and HKSAR v Islam SM Majharul [2020] 3 HKLRD 146, the sentencing court should also take into account, among other things, the role played by the defendant in the trafficking activities and the aggravating factor of the presence of more than one type of serious drug.

35.  Here, the police found one electronic scale and numerous small re-sealable bags inside Mr Tam’s residence.  Under caution, he said:

(a)  He intended to sell the dangerous drugs to others for money;

(b)  He will be rewarded $1,000 for every 24 grammes of drugs sold;

(c)  He was waiting for instructions from unknown person to distribute the dangerous drugs he had when he was arrested; and

(d)  The electronic scale was used for measuring the weight of dangerous drugs; the spare re-sealable bags were used for packing dangerous drugs.

36.  It is clear from the admitted facts that Mr Tam was not a mere storekeeper and courier; he was operating a packaging and distribution centre at his residence (see Herry Jane Yusuph paras 62-63).  For this reason, the initial starting point ought to be enhanced.

37.  Next, for the presence of two types of serious drug in this case, the initial starting point should also be enhanced (see para 27(4)  of Islam SM Majharul).

38.  For the matters covered in the two preceding paragraphs, I shall enhance the initial starting point by a total of 4 months.

39.  Mr Tam pleaded guilty at the earliest opportunity earning for himself the full 1/3 discount.  I consider there are no other mitigating factors of weight to justify any other reduction in sentence.

40.  The resulting sentence is a heavy one for a young man like Mr Tam. However, a consideration of the totality principle does not detract me from imposing that overall sentence on him.

41.  Notionally, I adopt a starting point 42 months for Charge 1; and a starting point of 84 months for Charge 2.  A discount of 1/3 for early plea will be applied to each of those starting points.  The resulting sentences will be made to run concurrently.

(Mr Tam, please stand)

42.  For Charge 1, the sentence for Mr Tam is 28 months’ imprisonment.

43.  For Charge 2, the sentence for Mr Tam is 56 months’ imprisonment.

44.  I order that both terms of imprisonment are to be served concurrently.