HKSAR v. TAM YU TING

 DCCC1059/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1059 OF 2009

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Reasons for Sentence

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1.  The defendant has pleaded guilty to the following charges: Charge 1, trafficking in a dangerous drug, namely 127.37 grammes of a powder containing 100.79 grammes of ketamine, which was contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134. Charge 2, possession of a dangerous drug, namely 13.73 grammes of a powder containing 11.72 grammes of ketamine, which was contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance.

Facts of the case

2.  The facts of this case could be summarized as follows.

Charge 1

3.  On 23 July 2009 at 12.25 pm, the police raided the premises at 1st floor, Tak Fan Building, 20 Tak Wah Street of Tsuen Wan (hereinafter called “the premises”), upon an anti-dangerous drug operation. The premises were divided into six rooms. Room F was let to the defendant since February 2009. When the police raided Room F, they found that the defendant was inside.

4.  Under caution the defendant revealed that there were some ketamine under her bed. Five plastic bags which contained a total of 64.08 grammes of a powder containing 48.71 grammes of ketamine were found inside a box placed under the bed. The defendant was arrested. Under caution she admitted that she had been helping Ah Hing Tau to sell the ketamine for two weeks in order to make money for buying ketamine for her own consumption.

5.  Another 33 plastic bags which contained a total of 63.29 grammes of a powder containing 52.08 grammes of ketamine were also found in Room F. The defendant admitted they were ketamine and she had packed them separately for subsequent selling. A large number of empty resealable plastic bags, an electronic scale and a box of plastic gloves were also found in the Room F.

6.  The defendant further admitted that the ketamine was supplied to her by Ah Hing Tau and she would divide them into small packages for subsequent selling. The empty resealable plastic bags, the plastic gloves and the electronic scale were used for packing the ketamine. She used a notebook to record the transactions of ketamine. Her average income of trafficking in dangerous drugs was around $5,000 to $6,000. Prior to her arrest, she had just sold 5 to 6 grammes of ketamine to Ah Shun at $500. The $500 seized from Room F and the $280 kept by her were all proceeds of her trafficking in dangerous drugs.

Charge 2

7.  The police was led to the defendant’s private car NM 3971 which was parked at Moral Well Car Park, Ma Tau Pa Road, Tsuen Wan. Upon search, a bag which contained 13.73 grammes of a powder containing 11.72 grammes of ketamine were found inside a concealed compartment in the car.

8.  Under caution the defendant claimed that the ketamine was for her own consumption but she has yet to consume any. She had placed it under the car two weeks ago and had forgotten all about it.

Mitigation and the defendant’s background

9.  The defendant, aged 23 years old, was a second-hand car dealer on a part-time basis before her arrest. Her parents were divorced and she has a younger sister. She has a clear record, but due to the adverse influence of the undesirable peers the defendant started to take ketamine and became addicted to it. Eventually she had to sell drugs to satisfy her needs in the vice. Consequently, she was caught not only for possessing but also trafficking in ketamine. The most powerful mitigation was her guilty plea.

10.  Ketamine is one of the most popular psychotropical drugs in Hong Kong. The damaging and harmful effect which the drugs would pose to life and society has caused great concern. Such aspect had been dealt with by the Court of Appeal in Secretary for Justice v Hii Siew Cheng CAAR7/2006 in detail. This court does not intend to go into it further.

Sentence tariff

11.  Sentence guidelines for trafficking in ketamine was laid down by the Court of Appeal in the same case. The tariff band for trafficking in 50 to 300 grammes of ketamine would be 6 to 9 years’ imprisonment.

Charge 1

12.  In this case the defendant trafficked in 100.79 grammes of ketamine. This court would then adopt a starting point of 6 years, i.e. 72 months. Upon plea the defendant is entitled to one-third discount and have the sentence reduced to 48 months.

Charge 2

13.  The defendant was found to be in possession of a large quantity of ketamine, namely 11.72 grammes which she claimed were for her own consumption. The court will adopt a starting point of 18 months imprisonment and reduce one-third for her plea to 12 months.

Concurrent or consecutive sentence

14.  Charges 1 and 2 were separate and distinct offences. The dangerous drugs in both charges were found at different places and for different purposes. The incidents could not be said to have been committed in the course of a single transaction. Concurrent sentence is hence not appropriate. Nevertheless, the offences were closely linked, therefore this court considers that partly consecutive sentence is appropriate.

15.  This court would bear in mind the totality principle. Sentences to be imposed would adequately reflect the overall criminality of the defendant but at the same time should not be excessive.

Conclusion

16.  Having fully considered the background of the case and of the defendant, mitigation put forward by defence counsel, prevalence and gravity of the offence, the sentencing guidelines laid down by the Court of Appeal and the totality principle, the court now imposes the following sentence: Charge 1, 48 months; Charge 2, 12 months; 6 months of which are to run consecutive to Charge 1. The total sentence is therefore 54 months imprisonment.

17.  For her previous good conduct and co-operation with the police, this court is prepared to reduce the sentence further by 3 months. As such, the defendant has to serve 51 months’ imprisonment.