HKSAR v. Tam Tsz Hung

HCCC 229/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 229 OF 2016

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

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COURT: Defendant, you have pleaded guilty to two charges of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance. Both charges were committed on the same date, that is, 29 May 2015, and in the area of Sham Shui Po.

In respect of the 1st charge, that involved 12.4 grammes of a mixture containing 8.94 grammes of heroin hydrochloride. In respect of the 2nd charge, it involved 43.60 grammes of a solid and 46.75 grammes of a mixture containing 67.7 grammes of heroin hydrochloride.

On the day in question, police officers were laying ambush outside a building at 281 Lai Chi Kok Road. At about 9 pm, you were intercepted as you were leaving the building. You were searched, and upon search the drugs in Charge 1 were found that were contained in 80 small packets (rather, I would call them “pellets”). They were found hidden in your underpants.

Upon arrest and caution, you claimed that the drugs were for your self‑consumption. Very shortly thereafter you were brought back into the building and taken up to your residence on the 3rd floor. In your premises the police found the drugs in Charge 2 which were contained in 589 small pellets. Together with these pellets was another packet of empty smaller empty plastic bags.

You admitted ownership of all the drugs and you had, upon your person, $11,000 cash, two mobile phones, keys to the premises and a rental receipt.

The retail value of the drugs seized was estimated to be about $76,754.

Defendant, you are 49 years of age and you have 14 previous convictions two of which are related to drugs, both of those being to possession of dangerous drugs: the first of those was in 2009 to which you were sentenced to 2 months’ imprisonment suspended for 12 months; and the last conviction, and similar, was that in 2013 to which you were sentenced to the Drug Addiction Treatment Centre.

Your counsel, Mr Andrew Leung, has gallantly tried to persuade this court that part of these drugs was for your own consumption and relying on the case of Chow Chun Sang he asked this court to give you a discount from the basic starting point as part of these drugs was for your own use.

He relies on the fact that you had been a drug-dependent for some 20-odd years, your previous criminal record shows that you have convictions for possession of dangerous drugs dating back to 2009.

Under caution when you were arrested on the street you immediately said that the drugs were for your own self‑consumption, and he also informed this court that you would take approximately two to three pellets a day - in a month that would be about 80 pellets, and out of 669 pellets that were found that would equate to about 12 per cent.

Although I accept that you are a drug-dependent and that some of these drugs were for your own consumption, the part that was for your own consumption was not a significant part. In fact, it was a small part.

As long ago as Wong Suet Hau & Anor, which was decided sometime in 2002, the Court of Appeal there clearly laid down that a significant part of the drugs needed to be for your own consumption before any discount was applicable.

In a recent case decided this year by the Court of Appeal in CACC 159/2015, HKSAR v Tam Ling Yuen, the Court of Appeal there, Lunn VP giving reasons for the judgment of the court, endorsed the judgment in Wong Suet Hau and had taken into consideration the case of Chow Chun Sang.

At paragraph 27 the court there stated:

“We have no hesitation whatsoever in rejecting Mr Fenton’s suggestion that the requirement clearly articulated in the reserved judgment of this court in Wong Suet Hau that a discount of sentence was to be afforded only where the court accepted that a “significant proportion” of the dangerous drugs in which the defendant trafficked unlawfully was for self‑consumption had been abandoned or jettisoned without any reference to it whatsoever, by this court in Chow Chun Sang.”

In the circumstances of this case, I cannot accept your counsel Mr Leung’s mitigation that I can accede to his application to make a discount from the basic starting point.

Defendant, in total, for the two counts you had been trafficking in was 76.64 grammes of heroin hydrochloride, and the tariff case for sentence in trafficking in heroin is that as laid down in R v Lau Tak Ming. For trafficking between 50 and 200 grammes, the starting point after trial would be one of between 8 to 12 years’ imprisonment.

Given the quantity that you were trafficking in, had you been convicted after trial I would have taken a starting point of 8 years and 6 months’ imprisonment.

You have pleaded guilty at the outset, and the usual one-third discount is applicable and, therefore, you shall be sentenced to 5 years and 8 months’ imprisonment.

I must now, however, sentence you individually for each charge, and your sentence for each charge is as follows.

On Charge 1, had you been convicted and sentenced after trial, the appropriate starting point would have been 4 years and 3 months’ imprisonment, and giving you the one‑third discount, the resulting sentence would be one of 2 years and 10 months’ imprisonment.

For Charge 2, the starting point after trial would have been one of 8 years and 3 months, and giving you the one‑third discount, the resulting sentence will be 5 years and 6 months’ imprisonment.

In order to arrive at the overall sentence, I order 2 months of Charge 1 to run consecutive to Charge 2, and the remaining terms to run concurrent.

The resulting sentence would therefore be 5 years and 8 months’ imprisonment to which you are so sentenced.