HKSAR v. TAM KIN WAI

HCCC 381/2018

[2019] HKCFI 777

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 381 OF 2018

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

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

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

Transcript of the Audio Recording

of the Sentence in the above Case

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

COURT:

Background and the facts

The defendant pleaded guilty in the Eastern Magistrates’ Courts to one count of trafficking in a dangerous drug on 3 December 2018 and was committed to the Court of First Instance for sentence. He confirmed his plea and admitted the Summary of Facts before me and was accordingly convicted.

Briefly, in the small hours of 1 April 2018, while the defendant was sitting alone in the driver’s seat on board a stationary taxi, the police saw him putting a small transparent plastic bag into a big one. That aroused the officer’s suspicion and he approached the defendant. The defendant then placed the large plastic bag to his side. The police asked him to get off the taxi. To the left of the driver’s seat, two large transparent plastic bags with seven other transparent bags inside were found on examination. The bags had a total of 43 small transparent plastic bags, inside which were 26.58 grammes of a solid containing 23.3 grammes of cocaine. Later, with the assistance of a police dog, the police found, from underneath the driver’s seat, another large transparent plastic bag containing five other bags. Inside those bags, there were a total of 35 small transparent bags with 22.21 grammes of a solid containing 19.25 grammes of cocaine. The two batches of the drug seized are now particularised in the charge, that is, 48.79 grammes of a solid containing 42.45 grammes of cocaine. The estimated value of the drugs was about HK$45,000 to HK$57,000.

Defendant’s background and mitigation

The defendant is aged 55 and is divorced. He was born in the Mainland and received education there. He worked as a taxi driver at the time of the offence. Prior to this offence, the defendant has three previous criminal convictions, including one of possession of a dangerous drug in respect of which he was sentenced to probation for 12 months in August 2017. In other words, he was still under probation at the time of his commission of the present offence.

In mitigation, Mr Boyton, for the defendant, submitted that the defendant intended to keep one‑third of the drug in question for self‑consumption. Mr Boyton also informed the court that the defendant committed this offence as he would like to earn money for his wife’s operation which was conducted months after the offence. In the course of submissions, Mr Boyton also handed up to the court a letter written by the defendant himself and those written by his son and ex‑wife. All described the defendant or both described the defendant as a responsible person who looks after the family well. In the defendant’s own letter, he expressed his remorse towards the commission of this offence.

Now, in respect of the claim that one‑third of the drug was for the defendant’s own consumption, I told Mr Boyton that, based on the matters disclosed and submitted, I was not prepared to accept such a claim. Upon hearing that, Mr Boyton nonetheless confirmed that there would not be any further evidence nor any further submissions.

Sentencing considerations

The tariffs for trafficking in cocaine are the same as those for heroin, see AG v Rojas (1994) 2 HKCLR 69 and R v Lau Tak Ming and others [1990] 2 HKLR 370. For trafficking between 10 and 50 grammes of cocaine, a term of 5 to 8 years’ imprisonment is called for. Having considered the facts of this case and the amount of the drug involved, I take the view that the appropriate starting point should be one of 7½ years.

For the following reasons, I completely reject the claim made by the defendant that he would keep one‑third of the drug for his own consumption. Firstly, in the defendant’s own letter to the court, he made full admission and explained that he committed the offence because he wanted to earn quick money to support his family. There was no mentioning whatsoever in that letter of the defendant of keeping one‑third for his own consumption. Secondly, there were a total of 78 plastic bags of cocaine in his possession. I have examined the photo album depicting those packets of drugs. All those drugs were kept inside small transparent plastic bags which were then put into larger plastic bags. No separate storage was made for any claimed drugs to be kept for the defendant’s own consumption. I am sure that as admitted by the defendant, he had all of the drugs in his possession for the purpose of unlawful trafficking. The claim that he intended to keep one‑third for his own consumption is simply untrue and without any basis.

In respect of the positive urine test result of cocaine and his seeking assistance to rid his drug habit, I have to emphasise that the mere fact that the defendant is a drug addict with a positive urine test result after his arrest, does not answer the primary question. Neither does a previous conviction of possession of a dangerous drug in itself do. The primary question is this, whether a substantial amount of the drugs in question was or might be for the defendant’s own consumption. As I have pointed out, based on the facts of this case and for what has been disclosed before me, I simply find that there is no basis for making such a claim.

I should also point out that if a previous possession of a dangerous drug conviction or a previous positive urine test result on its own will do for making this claim, then it would mean that a drug addict defendant, when facing a charge of trafficking in a dangerous drug, would be better off than one without any previous conviction or without any addiction.

Now, even if it might be the case that the defendant would have kept a small amount for his own use, simple possession of a dangerous drug is itself an offence which would call for a term of imprisonment. Therefore, even assuming that the defendant might keep a small amount for his own use, that would not affect the sentence in his case in any material way. In short, I do not consider I should exercise my discretion to grant the defendant any reduction because of this claim for self‑consumption. See for example, HKSAR v Kong Tat Lung, CACC27/2016, 11 August 2017, unreported.

Sentencing in this case

The defendant pleaded guilty at the committal stage. I would give him the full one‑third reduction for his plea. However, other than the defendant’s plea, there is nothing in this case which would warrant any further reduction in sentence. 7½ years reduced by one‑third is 5 years, and this is the sentence I impose on the defendant for the count of trafficking in a dangerous drug to which he pleaded guilty.