HKSAR v. TAN POH-CHYE

HCCC 57/2020

[2021] HKCFI 393

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 57 OF 2020

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

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COURT:  Introduction

The defendant pleaded guilty to one charge of conspiracy to traffic in dangerous drugs and is committed to this court for sentence. Before me, he confirmed his plea and his agreement to the Summary of Facts prepared by the prosecution.

The charge covers the period of about 15 days between about 6 December 2018 and 20 December 2018, during which he is alleged to have conspired with an unknown person to traffic in various dangerous drugs, including ketamine, heroin hydrochloride, cocaine, methamphetamine hydrochloride (commonly known as ‘Ice’), 3,4-methylenedioxymethamphetamine (commonly known as MDMA), nimetazepam and herbal cannabis.

Summary of Facts

Based on the Summary of Facts to which the defendant agrees, the defendant, a male and a female were found in a flat in Dundas Street on 20 December 2018 when the police officers arrived for a house search. On the defendant, the police found four foil packs containing a total of 40 tablets containing 0.29 grammes of nimetazepam.

Under caution, the defendant said he carried those because he had received 500 for selling them. At the time, the defendant also had HK$4,931 and one mobile phone on him.

In the ensuing house search, the police found in two bedrooms:

(a)  28 plastic bags containing 58.07 grammes of a solid containing 45.92 grammes of ketamine;

(b)  31 packets containing 4.96 grammes of a mixture containing 4.10 grammes of heroin hydrochloride;

(c)  seven plastic bags containing 1.24 grammes of a solid containing 0.96 grammes of cocaine;

(d)  two plastic bags containing 0.34 grammes of a solid containing 0.29 grammes of ‘Ice’;

(e)  six plastic bags containing 11 tablets and some tablet fragments containing 2.19 grammes of MDMA;

(f)  a foil pack containing nine tablets containing 0.06 grammes of nimetazepam;

(g)  13 plastic bags containing 37.70 grammes of herbal cannabis;

(h)  some papers with various drug-related terms, numbers and calculations written thereon; and

(i)  packaging paraphernalia including two electronic scales, one bundle of resealable plastic bags, one pair of scissors and a heat sealing machine.

The total estimated street value of all the dangerous drugs seized was HK$43,600.

Under caution, the defendant admitted ownership of the above items.

In a subsequent video-recorded interview, the defendant said, among other things, that he got acquainted with a male two to three days before who offered him a place to stay, some ‘Ice’ for self-consumption, a few packets of ketamine and HK$2,000 cash. In return, the defendant was to help the male traffic in dangerous drugs. Subsequently, he received phone calls from different people, instructing him to collect and deliver dangerous drugs. The callers would tell him the prices of the drugs and he was to collect the money on their behalf.

After he had completed the task, someone would collect the proceeds from him. For his part, the defendant would receive HK$3,500 (which was $500 a day) from his bosses. He said, however, that the cash found on him was his personal savings which had nothing to do with trafficking. He said that he consumed ‘Ice’ but no other drugs.

At the end of the Summary of Facts, the defendant admits and accepts that he was in knowing possession of all the dangerous drugs seized for the purpose of trafficking.

Antecedent

The defendant is a Singaporean and is now aged 55. He says that he has received education up to diploma level in a prison in Singapore. He is divorced. He came to Hong Kong in 2012 and is now a Form 8 holder. His parents have passed away and he has lost contact with his siblings who are all living in Singapore.

He says he has mobility difficulties due to old wounds on his waist and leg. But in mitigation, Ms Wong confirmed that his mobility problem was the result of his suffering from moderate cerebral atrophy.

The defendant said he had triad affiliation in Hong Kong. That is what he said in his antecedent statement but I would not take that into account for the purpose of sentencing.

His criminal records show that he had three previous convictions in Hong Kong, including two convictions of possession of dangerous drugs respectively (in 2014 and 2016) and one conviction of trafficking in a dangerous drug (in 2017) for which he was sentenced to 26 months’ imprisonment. He was last discharged from prison on 30 March 2018 which was less than nine months before the present offence.

Sentencing Consideration

In deciding the criminality of the defendant in the conspiracy, I find that the role of the defendant in the conspiracy was that of a courier and a storekeeper. I also take into account the length of the conspiracy which was about 15 days, and the reward which the defendant would receive. Furthermore, I take into account the quantities of various narcotics seized.

I note that the same sentencing tariff applies to ketamine, MDMA and nimetazepam (see SJ v Hii Siew Cheng and HKSAR v Wong Kin Kau). Similarly, cocaine equates to heroin hydrochloride (R v Lau Tak Ming and AG v Rojas). For the present purpose, the sentencing tariff for trafficking in ‘Ice’ is given in HKSAR v Tam Yi Chun whilst that for herbal cannabis is given in AG v Tuen Shui Ming.

In the present case, the narcotics seized include 45.92 grammes of ketamine, 2.19 grammes of MDMA, and 0.35 grammes of nimetazepam, (adding up to 48.46 grammes in total), 4.1 grammes of heroin hydrochloride and 0.96 grammes of cocaine (adding up to 5.06 grammes in total), 0.29 grammes of ‘Ice’ and 37.7 grammes of herbal cannabis.

Ms Vivian Wong, counsel for the defendant, in her helpful written mitigation has set out the calculation of the nominal starting point for the offence based on an arithmetical approach. Had the defendant been convicted of trafficking, then based on the conversion test as explained in HKSAR v Chan Yuk Leong, using ketamine as the main and more potent dangerous drug in this case and putting aside the herbal cannabis which would not have any significant impact on the overall sentence, the nominal starting point for trafficking in all the other narcotics as mentioned in the charge would be about 74 months.

I have also performed the “Absurdity Test” and “Ratio Test” as explained in HKSAR v Chan Yuk Leong. Again putting the herbal cannabis aside, the former would yield a nominal starting point of between 72 months and 119 months and the latter would yield a nominal starting point of 75 months.

I have considered HKSAR v Tsang Ka Wing. I note that the defendant told the police in the video-recorded interview that he had sold drugs, (the type and quantity of which are both unknown) on instruction on three occasions. He said that on the first occasion he sold a total of six packs of drugs to two persons and collected proceeds therefrom in the total amount of $3,600.

In view of the amount of the proceeds, I assume in the defendant’s favour that no matter what type of dangerous drugs they were on those occasions, their quantities are not likely to be very substantial. However, it does add to his overall criminality.

Having taken into account the defendant’s role in the conspiracy and doing the best I can, I am of the view that the appropriate nominal starting point for the conspiracy charge is one of 75 months’ imprisonment.

There are two aggravating factors present in this case. First, the defendant was trafficking in a multiplicity of dangerous drugs, and for this, in my view, 6 months should be added: see HKSAR v Wan Lau Mei. Secondly, he was a Form 8 holder at the time the offence was committed, and for this, in my view, another 6 months should be added (see HKSAR v Ali Saif).

I am alive to the similar previous convictions of the defendant and the fact that he reoffended just nine months after his last discharge from prison. However, similar to the situation of the appellant in Wan Lau Mei, there is evidence before me that the defendant committed the present offence in order to have a shelter and to feed his addiction. In the light of the personal circumstances of the defendant, I would not treat his previous convictions as an aggravating factor requiring a sentence containing an additional element of deterrence.

It is not a case in which all or a significant proportion of drugs was for the defendant’s consumption: HKSAR v Choi Chun Wo. In any event, the defendant now admits and accepts that he was “in possession of all the dangerous drugs seized for the purpose of trafficking”.

Based on the above, the overall starting point after trial in this case is one of 90 months’ imprisonment.

Sentence

I trust that Ms Wong has said all that can be said on behalf of the defendant in mitigation. I note that the defendant has difficulty of mobility as a result of his moderate cerebral atrophy. However, neither of those is related to the present offence. Although I am not without sympathy to the defendant, I am of the view that in view of the gravity of the offence, the defendant’s health problems are not such that his sentence should be reduced: Yip Kai Foon v HKSAR. I trust that the Correctional Services Department would be able to provide the defendant with suitable medical care and accommodation to meet his needs in custody.

In my view, the only factor which can reduce the defendant’s sentence is his timely plea for which he is entitled to the customary one-third discount. Therefore the defendant is sentenced to 90 times two-third equal 60 months’ imprisonment.