HKSAR v. LAW TSZ HO,ROY

HCCC 501/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 501 OF 2014

----------------------

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

COURT: The defendant has pleaded guilty to the 1st count of possession of a dangerous drug, namely 10.2 grammes of a powder containing 6.66 grammes of ketamine, and also to the 2nd count of trafficking in a dangerous drug, namely 119.55 grammes of a crystalline solid containing 117.27 grammes of methamphetamine hydrochloride.

On 22 July 2014, a joint operation had been mounted between police officers of the Yuen Long District with Immigration Department and Customs officers at the Lok Ma Chau Boundary Control Point.

As a result of this, the defendant was intercepted at the border control point and when he was searched, the drugs in the 1st count was found in a chocolate box in the defendant’s possession. Also found on his person were two mobile telephones and cash.

The defendant was taken to his residence in Hong Kong, situated in Tin Shui Wai, and when police officers searched his room, the drugs in Count 2 were found. These drugs were packaged in 12 plastic bags. Apart from the drugs were also found an electronic scale and numerous transparent plastic bags. Also found were a glass bottle, inserted with a glass tube and a glass tube shaped as a bulb at one end. When cautioned, the defendant admitted the drugs were his and that the paraphernalia was used by him for the inhalation of ‘Ice’.

When subsequently interviewed in the video-recorded interview, the defendant said that the drugs he had brought in from Mainland China, namely the ketamine, was for his own consumption. The defendant claimed that he lived in Shenzhen but worked in Hong Kong as a kitchen worker but had not worked since April. He used to earn $13,000 a month and he had paid $1,000 for the ketamine. He also admitted selling drugs to supplement his income.

In the second video-recorded interview, the defendant claimed that the drugs found at his home were for his own consumption, although he would sell part of the drugs to his friend occasionally. He claimed that he had paid $4,000 for the drugs. He claimed that he had bought those 12 bags of 'Ice' last month. That means the month before he was arrested.

The street value of the drugs in the 1st count, that is the ketamine, is about HK$1,285. As for the ‘Ice’ found at the defendant’s residence, the street value of those drugs was in the region of HK$53,558.

The defendant is aged 30 and he is married with one stepson. He has a clear record for the purposes of sentencing today.

In mitigation, Ms Lee had submitted letters from the defendant and from his former superior, the chief cook of the place he used to work in, and a letter from his auntie. In his letter, the defendant had detailed his unhappy childhood and the fact that he had worked, after leaving school, two to three jobs and as a result of which, he had pain in his body and he was told by a friend that taking ‘Ice’ would alleviate his pain.

There is no doubt in my mind that the defendant was regarded by his superior and also by his auntie as a hard-working person and a responsible person. There is also no doubt in my mind that, as his superior said, the defendant engaged in this trafficking for easy money.

It is sad of course that children grow up into adulthood who have had a very tragic childhood background but, as a 30-year-old man, the defendant can no longer blame his childhood for the criminal activities he chose to indulge in.

In mitigation, Ms Lee also submitted a letter from the Correctional Services which testified to the fact that when the defendant was admitted into their care, traces of methamphetamine hydrochloride were detected in his urine but no other drugs, and this supported the defendant’s contention that he was an habitual user of ‘Ice’.

When considering sentence, I will first consider the sentence for Count 1. The defendant was in possession of 6.66 grammes of ketamine. This would merit a starting point of about 12 to 18 months’ imprisonment.

The defendant said that, in relation to the ketamine, he had bought it in the mainland and took it back into Hong Kong. What is the problem with that is that importation into Hong Kong from Mainland China is an aggravating factor.

Although he claimed to the police that the drugs were for his own consumption, the fact that he was addicted or an habitual user of ‘Ice’ and that he was unemployed at the time when he brought these drugs in are factors which this court has to consider because it is important as far as the latent risk factor is concerned. I consider that the latent risk factor is very high in this case, particularly as the defendant admitted in his first video-recorded interview, when being interviewed in relation to the ketamine, that he was selling these drugs to supplement his income.

So I would adopt a starting point of 18 months, reducing it by one-third for his plea, and therefore send him to prison for 12 months.

In relation to Count 2, the defendant had pleaded guilty to trafficking in ‘Ice’, namely 119.55 grammes of a crystalline solid containing 117.27 grammes of methamphetamine hydrochloride.

The Court of Appeal made revised guidelines in sentencing for methamphetamine hydrochloride in the case of Tam Yi Chun CACC 524/2011. The judgment was handed down on 9 June 2014, thus it was before the arrest of the defendant in July 2014. So these revised guidelines are applicable to the defendant. And the guidelines then considered that for trafficking in between 70 grammes to 300 grammes, the sentence should be between 10 to 15 years’ imprisonment.

Therefore, for the amount set out in Count 2, the starting point would be in the region of between 12 to 12½ years’ imprisonment. And I do take into account that part of the ‘Ice’ was for the defendant’s consumption and I follow the considerations laid down by the Court of Appeal in cases of this nature in the case of Wong Suet Hau [2002] Vol 1 reported at HKLRD 69.

The Court of Appeal said, first, the court has to consider the quantity, which in this case is just over 117 grammes of ‘Ice’, and also the value, which is about HK$53,000.

The second consideration is the general circumstances of the case, for example, how the drugs were wrapped and the quantity of packets. In this case there were 12 plastic bags of ‘Ice’.

The third consideration is where these drugs were found, whether it is at home or on the street, and in this case, it was at the defendant’s home.

The fourth consideration is whether packaging paraphernalia were found, and in this case indeed electronic scale and empty plastic bags were found. Also found, which is in the defendant’s favour, were paraphernalia for consuming ‘Ice’.

The fifth consideration is whether the defendant was a habitual user. In this case I accept that the defendant was a user of the ‘Ice’.

The sixth consideration is the defendant’s explanations after arrest which I have already mentioned, that he did admit that, although he used part of the drugs, he did also sell the drugs.

The seventh consideration is the defendant’s means or ability to pay for the drugs, otherwise than for trafficking. And as I have mentioned, he said he was unemployed since April and there does not seem to be any visible means to support his drug habit apart from the trafficking.

And the last consideration laid down by the Court of Appeal is whether the defendant has any previous convictions and in this case, the defendant has no previous convictions for drugs.

The Court of Appeal in Wong Suet Hau had also said that the gravity of trafficking is not mitigated in cases where the trafficker was trafficking in order to fund his own addiction. In relation to Count 2, the defendant had admitted that he sold the drugs to friends occasionally and he had bought the drugs the month before his arrest which was during the time when he was unemployed.

Having considered all the facts in this case, I do accept that the defendant would indulge by using a small part of the ‘Ice’ for his own consumption. So having done that, I consider that a starting point on the trafficking charge in Count 2 should be 12 years’ imprisonment. I would have imposed 12½ years but I reduce it to 12 to take into account that the small part of the ‘Ice’ was for his own consumption.

The defendant has pleaded guilty, so he is entitled to the full one-third discount, thus reducing the sentence to 8 years’ imprisonment.

Now I have to consider the totality principle. It is of course open to me to order that both sentences should be served consecutively because they were both different drugs and the circumstances were different as, in Count 1, he was importing the ketamine from the mainland and in Count 2, the ‘Ice’ was found at his home.

But having taken into account the overall quantity of the drugs and the facts which I have already enunciated above, I would consider that it would be more appropriate to make the sentence in Count 2 concurrent to the sentence in Count 1.

So the defendant will go to prison for a total of 8 years.