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HCCC 10/2020
[2020] HKCFI 1310
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CRIMINAL CASE NO 10 OF 2020
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| Before: |
Hon Campbell-Moffat J |
| Date: |
28 May 2020 at 12.01 pm |
| Present: |
Mr Fergus Chau, SPP(Ag) of the Department of Justice, for HKSAR |
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Mr Bruce Tse, instructed by To, Lam & Co, assigned by DLA, for the accused |
| Offence: |
Trafficking in dangerous drugs (販運危險藥物) |
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Transcript of the Audio Recording
of the Sentence in the above Case
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COURT: Mr Yam, on 6 January 2020, you pleaded guilty before the Eastern Magistrates’ Court to one count of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, in that you trafficked in 27.57 grammes of herbal cannabis, 14.9 grammes of ‘Ice’ and 8.21 grammes of fluorodeschloroketamine.
Summary of Facts has been read out to you in court today and you have confirmed them as the basis of your plea. The dangerous drugs were found in the car which you were driving on 28 February 2019 when you were stopped on Kimberley Road in Tsim Sha Tsui. They were found inside a black bag which was in the storage compartment of the car. The herbal cannabis was divided into five separate plastic bags. The ‘Ice’ was in nine separate plastic bags and the ketamine in just one. In the same compartment, there was $10,653.80 in cash and there were three mobile phones.
At the time of your arrest and caution, you honestly told the police officer “I sell these dangerous drugs to people to earn a living”, and in interview you said that the car in fact belonged to a friend and you suggested that the money, the cash, represented your wages.
We now know that the value of the cannabis, rather surprisingly, was $12,021. The ‘Ice’ was worth $8,314 in terms of street value at the time of your arrest. The value of the fluorodeschloroketamine we do not know because it is of a different chemical constituency, although I am told it is a similar narcotic content to ketamine, and I will treat it as such for the purposes of sentencing but it would appear that you had at least 20,000, at least $20,000 worth of dangerous drugs on you as well as $10,000 in cash.
I have seen from your antecedents that you are 39 years of age and you are educated only up to Form 1. You are now divorced and you live with your mother and brother. You say you were employed as a construction worker at the time that you were arrested but, of course, you told the police that you also made a living trafficking in dangerous drugs. From the construction work you say that you earned $20,000 approximately a month.
Your criminal record dates back to 1998 when you were just 17. At that time you were prosecuted for possession of dangerous drugs and you received a 12-month probation order. For the same offence, you received a further probation order in December 1999, by which time you were 19 years of age. And in 2003 and in 2012 for the same offence again you were fined.
There are other dissimilar matters on your record, the most notable of which was under section 25 of the Organized and Serious Crimes Ordinance, Cap 455, for which you received a term of imprisonment of 2 years, and you were released from that imprisonment on 2 November 2017. This offence was committed on 28 February 2019.
Mr Tse on your behalf reminds the court that you were frank at the time of the stop and search and had been co‑operative at all times. You have no similar convictions and you are now remorseful. That, Mr Yam, is to your credit as is your plea of guilty at the first opportunity.
You had in your possession in February 2019 three different types of dangerous drugs: herbal cannabis, ‘Ice’, and ketamine. The guidelines for sentencing for ‘Ice’ can be found in HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, and for between 10 and 70 grammes, the sentencing range is 7 to 11 years’ imprisonment.
The guidelines for sentencing for trafficking in ketamine, next most serious drug, can be found within Secretary of Justice v Hii Siew Cheng [2009] 1 HKLRD 1, and for between 1 to 10 grammes of ketamine, the sentencing range is 2 to 4 years’ imprisonment. And assistance in sentencing of herbal cannabis can be derived from R v Tuen Shui Ming and Another [1995] HKC 798 and also more recently HKSAR v Chor Lui [2001] 3 HKLRD 95.
You had in your possession, as I said, 25.57 grammes of herbal cannabis, 14.9 grammes of ‘Ice’ and 8.21 grammes of ketamine, and I agree with Mr Tse when he suggests to the court that the guidelines indicate that the starting point to be adopted after trial in each case would be around 4 months for the herbal cannabis, 7 years and 4 months for the ‘Ice’ and 3 years and 8 months for the ketamine, but to simply add those sentences together would amount to 11 years and 4 months’ imprisonment which does not reflect the true criminality of your offending.
The paramount consideration in sentencing for the trafficking of a cocktail of dangerous drugs is one of totality such that the sentence properly reflects your culpability. So I therefore looked at the various tests espoused within the authorities and in particular to HKSAR v Chan Yuk Leong CACC 318/2013 for guidance in assessing the sentence in this case. I have noted that the Court of Appeal in that case remarked that these tests are simply references by which one can gauge what is appropriate in any given case. Sentencing is still very much within the discretion of the court.
So I took as my initial starting point the sentence for the 14.9 grammes of ‘Ice’ because that is by far the most serious drug even though it is the lighter quantity than the herbal cannabis, and the starting point after trial for that is 7 years and 4 months, and that will be the minimum sentence to be passed in a case such as this.
Having reminded myself that the court has been warned not to slavishly apply a strict mathematical approach and bearing in mind that the guideline tariffs are biased with relatively heavier sentences imposed on the trafficking of lesser amounts as a means of deterrence, I have also taken into consideration the fact that the seizure of two or more drugs at the same time, even if separately packaged and not in a prepared mixture, may allow the trafficker to cater for a wider market and more importantly, the effect on users of a combination of drugs where it has been said that in certain circumstances a combination of drugs may have a more serious effect on drug abusers than taking the drugs individually. That is certainly the case with ‘Ice’ and ketamine.
The latent risk is therefore one which should be taken into consideration and I do so by enhancing the starting point of 3 years and 8 months for the ketamine as a reference point by 4 months, making 4 years. I have taken into account what Mr Tse has urged upon the court in respect of the application of the conversion test which would enhance the starting point for the ‘Ice’ by just 2 months to take into account the ketamine which would otherwise have attracted a sentence, before I enhanced it, of 3 years and 8 months, and I do not consider that that is an appropriate course to take here. So taking totality into account, I consider that an enhancement of 8 months to the starting point of 7 years and 4 months for the ‘Ice’ is appropriate to reflect the ketamine which you also possessed, plus 6 weeks for the herbal cannabis, making a total starting point of 8 years and 6 weeks which after one-third discount makes a sentence of 5 years and 5 months.
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