HKSAR v. TSE CHOI MING

HCCC 60/2018

[2018] HKCFI 1362

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 60 OF 2018

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

Ms Tse, on 12 February 2018, you pleaded guilty before the Eastern Magistrates’ Court to one count of traffic in dangerous drugs, contrary to Sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, in that you trafficked in 13.10 grammes of “Ice” and 18.18 grammes of ketamine.

The Summary of Facts has been read out to you in court today, and you have confirmed them and the basis of your plea. You were found to be in possession of the drugs in question, when observed to act suspiciously in Sai Yee Street Garden in Mong Kok on 14 March of last year. The “Ice” was found in your handbag, contained within one resealable plastic bag, whilst the ketamine was divided into four such bags.

At the time of your arrest, you said the drugs were for your own consumption. In interview, as is your right, you chose not to answer any questions.

The street value of the drugs you had on you that night was $11,483.81, that is a lot of money for someone in your position.

You are 31 years of age now, and were unemployed and living on public assistance of $7,400 at the time of your arrest, although you had previously worked as a waitress in an attempt to supplement that income. Either way, that is not a lot of money with which to raise two children, and your parents were not in a position to help you financially.

Your criminal record dates back to 2008, when you were just 21. There are four matters recorded, all for drugs, including one matter of trafficking in dangerous drugs, which was in 2008. You were sentenced to 28 months’ imprisonment for that, and then later, to DATC, as you were clearly developing an addiction.

The offence of trafficking in dangerous drugs was 10 years ago, and before you became a mother to your own son, and a surrogate mother to your late brother’s daughter. They are just 4 and 9, and they need a mother. Their grandmother has stepped into the breach, and she is doing her best supporting them, and you, but she also has a frail husband who needs constant care, and I see that she manages to take on cleaning work as well.

Mr Hung, on your behalf, tells the court that you have been an addict for 10 years. He has outlined your family situation and has indicated that your addiction meant that you consumed up to four grammes of “Ice” per week, and would have consumed part of the “Ice” that you had on you that evening. Given your drug test after arrest and the concentration of amphetamine in your system, I have no doubt at all that that is what you would have done.

I have two letters, one from your mother, who accepts the role which she has played in your current position. But as I have said, she is now doing her very best to support you both, both you and your children, as well as your elderly father, whilst you are in prison.

I also have one from you, and I have to say yours is a moving letter. You appear to genuinely understand the path your life has taken, and the effect your choices have had upon others, most notably your son, niece and your mother. I accept that this is a turning point for you, and that your remorse is genuine. I accept that you have put aside consideration for your own position, and are focused on the lives of those you love, and how much more difficulty you have made those lives, because of what you have done.

I also accept that this would not have occurred if not for your own addiction to “Ice”. I take the view that it was more likely than not that the “Ice” would have been for your own consumption, as it represents just three weeks’ consumption at the rate suggested by Mr Hung. I take the view that it was primarily the ketamine that was for sale, as it was divided into four separate bags. But even so there would be a risk, as you have admitted that you might sell on some part of the “Ice” at a profit in order to feed your habit. I cannot ignore that fact.

You had in your possession two different types of dangerous drugs, “Ice” and ketamine. The guidelines on sentencing for “Ice” can be found within HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, and for between 10 to 70 grammes, the sentencing range is 7 to 11 years’ imprisonment. The guidelines for sentencing in trafficking in ketamine can be found within Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1, for between 10 and 50 grammes of ketamine, the sentencing range is 4 to 6 years.

You had in your possession 13.10 grammes of “Ice” and 18.18 grammes of ketamine. The guidelines indicate that the starting point to be adopted after trial in each case would be 7 years 3 months for the “Ice” and 4 years 4 months for the ketamine. But to simply add those two sentences together would amount to 11 years and 7 months, which does not reflect the true criminality of your offending.

I therefore looked at the various tests, 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. Sentencing is still very much within the discretion of the court.

I took as my initial starting point, the sentence for the 13.10 grammes of “Ice”, because that is, by far, the more serious drug, even though it is a marginally lighter quantity. The starting point after trial for that is 7 years and 3 months, and would normally be the minimum sentence to be passed in a case such as this.

However, I believe a substantial part of this drug was more likely than not for your own consumption, and therefore, I have decided to take the 18.18 grammes of ketamine as my starting point.

The starting point for the amount of ketamine is 4 years and 4 months, but I cannot forget that you did also possess the “Ice”.

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 abuses, then 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 4 years 4 months for the ketamine by 14 months to include the possession of the “Ice” and the element of latent risk. That makes a total of 5 years and 6 months. I believe, in my discretion, knowing all that I do about you, and having read your letters of mitigation, that that is the appropriate sentence in this case.

You will of course receive a discount of one-third for your early indication of plea, and you will go to prison for 3 years and 8 months.