HKSAR v. TAM TUN HIM

HCCC 111/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 111 OF 2015

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

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

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

Transcript of the Audio Recording

of the Sentence in the above Case

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

COURT: The defendant has been convicted on his own plea of the following charges: Count 1, possession of a dangerous drug, namely 0.56 gramme of a powder containing 0.23 gramme of ketamine; Count 2, trafficking in a dangerous drug, namely 418.30 grammes of a powder containing 198.79 grammes of ketamine; and Count 3, possession of a dangerous drug, namely 1.12 grammes of a powder containing 0.22 gramme of ketamine.

The Summary of Facts admitted by the defendant provides, inter alia, that at 10.25 pm on 23 June 2014, the defendant was seen by Customs officers leaving a metal gate in Shun Tat Street, Tuen Mun. The defendant was stopped and searched by PW1, Customs Officer 98125.

The drug in Count 1 was found in a bag the defendant was carrying, namely 0.56 gramme of a powder containing 0.23 gramme of ketamine. A red straw was inserted in the folded paper pack containing the drug. Also found in the defendant’s bag were four bunches of keys. The defendant was arrested.

Under caution, the defendant said he had taken the ‘K Chai’ from the goods vehicle inside the metal gate. The defendant provided the code of the padlock on the gate. The officers and the defendant went inside the gate to the vehicle.

A key found in the defendant’s bag was used to unlock the driver’s door of the goods vehicle, DP639. In the pocket of the driver’s door, the Count 2 drug was found by PW1. It consisted of 240 grammes of a powder containing 140 grammes of ketamine in a ziplock bag wrapped in newspaper, and 14 ziplock bags with a total of 178.30 grammes of a powder containing 58.79 grammes of ketamine. The 14 bags were inside a purple Lozenges box.

The defendant was asked where he lived. He said “At number 152 of this village”. The officers and the defendant walked there. It was about 100 yards and five minutes’ walk away.

The gate to number 152 was not locked at the time of their arrival. The glass door to the living room on the ground floor was open. The officers and the defendant went into the defendant’s home.

The defendant indicated his room, the wooden door of which was locked. One of the keys from the defendant’s bag was used to open the door to the defendant’s room. There were three metal cabinets inside. In one of these cabinets, the middle drawer was locked. Another key which had been in the defendant’s bag was used to open this middle drawer. In it were a round Lozenges tin and a paper box. In the tin was the Count 3 drug: 1.12 grammes of a powder containing 0.22 grammes of ketamine. Also in the paper box were three electronic scales, two ziplock bags holding over 100 small transparent ziplock bags, scissors and a clamp.

The estimated street value in June 2014 of all the seized drugs in all three counts was $49,557.64 at HK$118 per gramme. The value of the Count 2 drug (418.30 grammes) was $49,359.40.

The goods vehicle, DP639, belonged to the defendant’s cousin. The goods vehicle and the keys to it had been left with the defendant for the defendant to look after.

By way of personal background, the defendant is 31 years of age. He was born in Hong Kong in November 1984. The defendant has received education up to secondary Form 3 level. The defendant is single. Prior to his arrest, he resided with his grandfather, his paternal uncles and aunts in a public housing unit. The defendant was a decoration worker earning around HK$15,000 per month.

The defendant has three previous criminal convictions, two of which were for possession of a dangerous drug, ketamine. On 15 March 2013, the defendant was sentenced to, inter alia, 2 months’ imprisonment, suspended for 2 years, for an offence of “Driving a motor vehicle with any concentration of specified illicit drug”. Thus, the present offences were committed during the period of suspension.

By way of mitigation, Ms Annie Lai submitted on behalf of the defendant that he is remorseful, and has learned a real lesson.

I was told that the defendant was a drug addict, and he was induced by bad elements to commit the present offences. The defendant committed the present offence because he would, as a result, obtain drugs for his own use at a discount, which was only a small financial gain.

Three mitigation letters from respectively the defendant, his grandfather and his employer were submitted to the court, the contents of which have been duly noted.

However, as has been pointed out by the courts on many previous occasions, personal and family circumstances of a defendant will offer little mitigation in drug trafficking cases.

I deal first with the proper starting point for sentence on Count 2.

The tariffs for unlawful trafficking in ketamine have been laid down by the Court of Appeal in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1. In the Hii Siew Cheng case, the Court of Appeal held that for trafficking in between 50 to 300 grammes of ketamine, the proper sentence after trial should be 6 to 9 years’ imprisonment.

In my view, based on the quantity of narcotic involved (198.79 grammes of ketamine), the proper starting point for sentence on Count 2 in the present case should be 7 years and 9 months’ imprisonment.

The defendant claims in mitigation that part of the drug charged under Count 2 was intended for his own consumption. He claims that around 30 grammes (ie, around 15%) of the drug was for his own use.

The prosecution, very fairly, accepts that the defendant was a user of ketamine, and part of the drug involved in Count 2 was for the defendant’s self-consumption. The prosecution further does not dispute that as much as around 15% of the drug in Count 2 was for the defendant’s own use.

Given that it is not disputed that the defendant was at the material time a drug addict, and in light of his criminal record, I would accept the defendant’s claim in this regard. That being so, the defendant is entitled to some discount.

In all the circumstances of the present case, I am of the view that the appropriate discount to reflect the fact that part of the drug seized was intended for the defendant’s own consumption is 10% [see: HKSAR v Chow Chun Sang [2012] 2 HKLRD 1121, paragraphs 19 and 20].

In arriving at the figure of 10%, I have taken into account that possession of ketamine for personal consumption is also an offence in itself. Furthermore, one must not overlook the latent risk that the portion of the drug intended for the defendant’s own consumption may be given or sent to others.

This brings the starting point from 7 years and 9 months’ imprisonment down to 6 years and 11 months’ imprisonment.

I shall give the defendant a full one-third discount for his guilty plea. This results in a sentence of 4 years and 7 months’ imprisonment on Count 2.

On Count 1 and Count 3, possession of dangerous drugs, for the small quantities of ketamine involved, I would adopt a starting point of 9 months’ imprisonment each for the two offences. They must then be reduced by one-third to reflect the defendant’s guilty plea. This results in sentences of 6 months each on Count 1 and Count 3.

I then have to give consideration to the totality principle in order to arrive at a correct overall sentence. This is particularly so in the present case: for even if the defendant had been convicted of the more serious offence of trafficking on Count 1 and Count 3, the quantity of narcotics in those two counts would be combined with the quantity in Count 2 to achieve a just overall sentence.

HKSAR v Or Wai Tong, CACC 250/2009 (Judgment dated 3 December 2009) is Court of Appeal authority that, in the circumstances, the sentences on Count 1 and Count 3 should be ordered to be served wholly concurrently with the sentence on Count 2, and I will so order.

In conclusion, on Count 1 of possession of a dangerous drug, the defendant is sentenced to 6 months’ imprisonment. On Count 2 of trafficking in a dangerous drug, the defendant is sentenced to 4 years and 7 months’ imprisonment. On Count 3 of possession of a dangerous drug, the defendant is sentenced to 6 months’ imprisonment.

The sentences on Count 1 and Count 3 are to run concurrently with each other, and concurrently with the sentence on Count 2.

Further, the 2-month suspended sentence imposed in TM/729/13 is activated in full, which is to run consecutively to the sentences imposed in the present case. In all the circumstances of this case, I do not consider it unjust to so order.

Thus, the total sentence the defendant has to serve is 4 years and 9 months’ imprisonment.