HKSAR v. TAM MEI YAN, FANNY

HCCC 201/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 201 OF 2015

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

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COURT: The defendant pleaded guilty to two counts of trafficking in a dangerous drug. The 1st count involved 54.8 grammes of 'Ice'. The 2nd count involved several kinds of dangerous drugs, 33.23 grammes of 'Ice', 38.2 grammes of ketamine, 3.55 grammes of herbal cannabis, 1.14 grammes of cocaine and 10 tablets containing 0.08 grammes of nimetazepam.

At about 2 am on 16 December 2014, a team of police officers were on anti-dangerous drug operation in the vicinity of Ng Uk Tsuen, Yuen Long. The officers entered the flat through the kitchen window on the 1st floor, No 152 Ng Uk Tsuen. They stopped two persons inside. The police then searched the flat.

At about 2.33 am, the defendant returned to the flat with another person. They were arrested. Upon search, an officer found a packet of 'Ice' in the handbag of the defendant. This was the subject matter of the 1st count. Later, the police searched the room of the defendant. They found a red metal box under the dressing table. Inside were the following items which were the subject matter of the 2nd count:

(a) nine plastic bags of different sizes containing 33.23 grammes of 'Ice';

(b) two bags containing 38.2 grammes of ketamine;

(c) one plastic bag containing 3.55 grammes of herbal cannabis;

(d) 13 plastic bags containing 1.14 grammes of cocaine;

(e) a foil pack containing 10 tablets containing 0.80 grammes of nimetazepam;

(f) an electronic scale.

There was also found a white box containing 86 transparent resealable plastic bags.

The defendant admitted, under caution, that the dangerous drugs belonged to her. In the later video interview, the defendant told the police that she was the only person who could open the digital lock of her bedroom. The plastic bags inside the white box were for repacking the dangerous drugs.

The total value of the dangerous drugs seized was about $48,000.

The defendant is 34 years old. She has five previous convictions, four of them are possession of a dangerous drug. She is single and received education up to form 1. She has worked as a waitress and saleslady in the past. Her parents are aged 80 and 68 respectively. The defendant was an addict at the time of the offence. Urine test by the Correctional Services Department revealed that she was addicted to 'Ice'.

Mr Chau, defence counsel, invites this court to consider that about one-third of the 'Ice' was for her own consumption. This was supported by the positive urine test, the previous convictions and her admissions soon after her arrest. The defendant committed this offence because of her financial difficulties.

In relation to the 1st count, the sentencing tariff is Tam Yi Chun [2014] Volume 4 HKC 256. Trafficking in 54.8 grammes of 'Ice' warrants a starting point of 10 years’ imprisonment. In relation to the 2nd count for the 33.23 grammes of 'Ice', according to the tariff set out above, the starting point should be 8½ years’ imprisonment. For the 38.2 grammes of ketamine, according to Hii Siew Cheng, the starting point should be 5 years and 5 months’ imprisonment. For the 1.14 grammes of cocaine, according to Lau Tak Ming, the starting point for trafficking should be 2 years and 4 months’ imprisonment.

As there are three kinds of drugs, I adopt the approach in Hong Kong SAR v Wong King Kau [2010] Volume 4 HKC 443. I shall deal with the herbal cannabis and the nimetazepam later.

In arriving at the combined starting point, I have considered the following. I first add the 0.08 grammes of nimetazepam to the 38.2 grammes of ketamine as both kinds of dangerous drug have comparable addictiveness. I arrive at the total of 38.28 grammes of ketamine. Trafficking in 38.28 grammes of ketamine warrants an imprisonment of 5 years and 5 months’ imprisonment. This is roughly equivalent to the criminality of trafficking in 6 grammes of 'Ice'.

Trafficking in 1.14 grammes of cocaine would be roughly equivalent to the criminality of trafficking in a very small amount of 'Ice'. The amount is negligible so far as conversion for sentencing is concerned. As to the 3.55 grammes of herbal cannabis, I would not further enhance the basis for sentencing.

The defendant is sentenced on the basis of trafficking 39.23 grammes of 'Ice' and the sentence should be 9 years’ imprisonment. Given the circumstances in this case, I would not enhance the starting point further for the potential of mixing of the drugs.

I accept about one-third of the 'Ice' was for her own consumption. Bearing in mind the principles set out in the authorities, Wong Suet Hau and Tsang Chung Keung, I give her 15 per cent discount for the self-consumption factor.

For the 1st count, I take 10 years as the starting point. I deduct 15 per cent for own consumption factor. The adjusted starting point is 8 years and 6 months’ imprisonment. I deduct 2 years and 10 months for the plea. I sentence the defendant to 5 years and 8 months’ imprisonment.

For the 2nd count, the 33.32 grammes of 'Ice' warrants a starting point of 8 years and 6 months’ imprisonment. Taking into account the own consumption factor, the adjusted starting point is 7 years and 4 months’ imprisonment. Taking into consideration the amount of ketamine in this charge, I adjust the final starting point to 8 years and 3 months’ imprisonment. I deduct 2 years and 9 months for the plea. I sentence the defendant to 5 years and 6 months’ imprisonment.

In view of the totality principle, I order that 6 months of the sentence of the 2nd count to run consecutive to the sentence of the 1st count.

The defendant has to serve a total of 6 years and 2 months’ imprisonment.