HKSAR v. Tam Hoi Shan

DCCC 440/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 440 OF 2015

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REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Trafficking in dangerous drugs". The dangerous drugs involved are primarily heroin and a negligible quantity of "ICE" and midazolam.

Summary of Facts

2.About 7:15 pm on 11 March 2015, a team of police officers entered a stone hut situated at No.202A Tin Liu Tsuen, Kung Um Road, Yuen Long with a search warrant.

3.Upon search, amongst other things, PC 9486 found the following items on a table in the living room :-

(i) a transparent plastic box which contained 4 plastic bags (namely E3 to E6) containing suspected dangerous drugs;

(ii) an electronic scale;

(iii) a silver spoon;

(iv) a pair of scissors;

(v) a black plastic bag which contained numerous transparent resealable plastic bags;

(vi) a plastic box which contained a green plastic sheet;

(vii) a plastic box which contained 31 transparent resealable plastic bags; and

(viii) 3 rolls of green plastic bags.

4.A Government Chemist confirmed that E3 was 1 plastic bag containing 1 plastic bag which contained 11.20 grammes of a mixture containing 7.58 grammes of heroin hydrochloride; E4 and E5 were 2 plastic bags which contained a total of 0.32 gramme of a crystalline solid containing 0.31 gramme of methamphetamine hydrochloride; and E6 was 1 foil pack which contained 1 tablet containing 0.01 gramme of midazolam.

5.The total number of plastic bags found at the scene was 466.

6.Under caution, the defendant admitted that she purchased the dangerous drugs found at the scene for self-consumption.  In her video recorded interview, she repeated that E3 to E6 were for her own consumption.  She admitted that she was the sole occupant of the stone hut and that only she possessed the key to the premises.

Mitigation & Sentence

7.The defendant is now 38 and has 6 conviction records, which include 3 "simple possession" offences.  Defence counsel Mr. SHER informed me that the defendant is divorced with 3 children (aged 4 to 13).  Sadly, her children each have a different biological father, and they reside separately with different relatives.

8.In mitigation, Mr. SHER informed me that the defendant started consuming heroin in her 20s.  She also consumes "ICE" occasionally.  As depicted in the top right corner of Photo 15, a syringe was present in the stone hut.  Her conviction records and the test results of her urine samples taken on 15 to 17 March 2015 can prove that she was a drug user.  Mr. SHER submitted that the defendant intended to consume half of the heroin found at the scene.

9.A clear message must be conveyed to the general public that "drug trafficking" is a serious crime and that drug traffickers would most certainly be punished by long-term imprisonment even for fresh offenders.

10.Both the "ICE" and midazolam involved in the present case were so negligible that I am prepared to disregard them for the purpose of sentencing.  I will sentence the defendant based on the quantity of heroin.  The Court of Appeal has laid down clear sentencing guidelines for trafficking in heroin (see The Queen v LAU Tak-ming & others [1990] 2 HKLR 370).  For up to 10 grammes, the sentence ranges from 2 to 5 years' imprisonment.  The defendant trafficked in 7.58 grammes of heroin, the appropriate starting point is 4 years.

11.Regarding the claim for self-consumption, I have reminded myself of the relevant sentencing principles[1]. There is sufficient evidence to show that the defendant was a drug user at the time of arrest.  At the same time, the evidence of carrying out drug-packaging in the stone hut is overwhelming.  I am prepared to reduce the sentence to 42 months[2] to reflect the discount for self-consumption.

12.Finally, a one-third discount is given for the guilty plea, reducing the sentence further to 28 months. Apart from this, I see no other mitigating factors which warrant any further reduction.   I hereby sentence the defendant to 28 months' imprisonment.