HKSAR v. Tai Sing Tim

HCCC 62/2018

[2018] HKCFI 2762

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 62 OF 2018

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

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COURT:

The defendant had pleaded not guilty to one count of trafficking in dangerous drugs, contrary to section 4 of the Drugs Ordinance, Cap 134, but he was found guilty after trial by a unanimous jury.

The facts of this case are straightforward. The defendant was arrested near Exit B, Siu Hong MTR station in Tuen Mun. He was acting suspiciously when he spotted PW1, a uniformed police officer, by turning around, and walking away. He was then stopped and searched and in his bag, PW1 found 16 grammes of methamphetamine hydrochloride and 2.45 grammes of a solid containing 1.84 grammes of heroin hydrochloride. Other items of significance were 12 empty resealable transparent plastic bags, a small electronic scale and $26,753.50.

The defendant was arrested for trafficking in dangerous drugs and admitted under caution that he was in possession of ‘Ice’ and heroin, but for his own consumption. During the defendant’s house search, the police did not find any drug-taking paraphernalia. The defendant’s case was that he had just visited a drug trafficker in Tuen Mun and purchased enough drugs for one month before he was arrested at the MTR station. He explained in his video‑recorded interview, as well as in his evidence in court, that he was a deep-rooted, long-term drug addict, but held down a very well-paying job with more private work after hours. He said he cleaned water tanks, industrial kitchens and other similar plumbing jobs. He had had this job for three months and earned at least $40,000 a month.

He said the money found on him was his salary for July and he had been paid in cash a few days prior to his arrest. The defendant explained that he carried the electronic scale to weigh the drugs when he bought them so he was not cheated. He explained that he picked up the 12 empty resealable transparent plastic bags because the printing on them was cute. He had an explanation for every item in his bag, but the jury was obviously not convinced and found the prosecution had proved beyond reasonable doubt that he was trafficking in those drugs.

The defendant is nearly 44 years old and born in China. He only received an education up until Form 3 and I am told he has held down jobs as a decoration worker, a delivery worker and a cleaner. He is a long-term drug addict, but does not suffer from any drug-related illnesses. He was married and has an 8-year old daughter. Despite his divorce from his wife, they all live together under the same roof with the defendant’s parents in Hung Hom.

The defendant is not a man with a clear record. He has 14 previous convictions obtained over 13 court appearances. His first conviction was for possession of dangerous drugs in July 1999. He has in total three possession convictions and one previous conviction for trafficking in dangerous drugs which was dealt with in the High Court in June 2014, where he was sentenced to 5 years’ imprisonment. In fact, he had only been released from that term of imprisonment 3 months prior to his arrest for this offence. This could be an aggravating factor which attracts an enhancement.

Mr Ching, counsel for the defendant, has said all he can say on behalf of the defendant in mitigation. He has also given me full details of his parents’ ailments and health situation. He has conveyed the message that the defendant is very sad to hear of for the first time today their health conditions. His parents who have made it to court today despite his father’s difficulty in walking, both ask for leniency, and at the same time hope their son will finally turn over a new leaf, become a responsible member of society. He also needs to be a responsible father.

Trafficking in a dangerous drug is a serious offence. On conviction on indictment, a person is liable to a fine of HK$5 million and imprisonment for life. Here we have two types of drugs, what can be described as a cocktail of drugs. Sentencing guidelines in ‘Ice’ is found in the authority of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, and the starting point for trafficking between 10 to 70 grammes of ‘Ice’ is 7 to 10 years’ imprisonment. Therefore, the starting point for trafficking in 16 grammes of ‘Ice’ alone, in this case, is 7 years and 3 months’ imprisonment.

As far as the heroin is concerned, according to R v Lau Tak Ming [1990] 2 HKLR 370, the starting point for trafficking in up to 10 grammes of heroin is 2 to 5 years’ imprisonment. The starting point for the total amount of heroin in this case alone, 1.84 grammes, is approximately 2 years and 2 months. In the case of HKSAR v Yip Wai Yin & Anor [2004] 3 HKC 367, the Court of Appeal there stated that for sentencing in different quantities of drugs, a combined approach would usually be correct in taking a global view. This approach is often preferred and produces the more realistic sentence. In the combined approach, the court looks at the overall quantity of drugs rather than the individual parcels.

The methodology of this combined approach is to first calculate the applicable sentence for the more serious and potent drug, and then make an upward adjustment to take into account the significant quantities of the other drug. In the case of HKSAR v Chan Yuk Leong, CACC 318/2013, the Court of Appeal there also held that the court should take the most serious drug and adjust it upwards for the other drug. The court there discusses three means of cross‑checking whether the sentence was manifestly excessive. The first test was the absurdity test, second test was the conversion test and the third was a ratio test.

Defence counsel has asked me to treat the amount of heroin as de minimus and ignore it, or take the combined approach in considering sentence. I have referred myself to several other authorities dealing with cocktail of drugs, including HKSAR v Leung Chun Pong [2009] 6 HKC 672, as well as HKSAR v Wong Kin Kau [2010] 4 HKC 443. In my view, it would be sensible to take a combined approach here, where the total quantity of drugs will be converted into the quantity of either the most serious or the most prevalent of the drugs. In this case, the vast majority of the drugs is ‘Ice’, with a small quantity of heroin. Methamphetamine hydrochloride, commonly known as ‘Ice’, is in any event the more potent and dangerous drug.

I do not feel that I can ignore the heroin as it is still 2.4 grammes of a solid containing 1.84 grammes of heroin. If the individual approach was taken, the individual sentences would add up to a total of 9 years and 5 months, if they were considered together. That would far exceed the criminality of the defendant’s crime. Because of the potency of ‘Ice’ and it being the majority of the narcotics in this case, I will take ‘Ice’ as the base for sentencing.

After hearing mitigation and taking the combined approach to sentencing here, I have added the lesser quantity of heroin to the higher quantity of ‘Ice’ and sentenced on the basis that the total amount is ‘Ice’. If I took the weight of the total amount of the drugs recovered which is 17.84 grammes and sentenced the defendant for all being ‘Ice’, then the starting point after trial would be 7 years and 4 months. That is one month more than if it was only 16 grammes of ‘Ice’. If I were to firstly consider the starting point for the ‘Ice’ only, 7 years and 3 months, and then adjust it upwards to reflect the smaller quantity of heroin, the starting point may have been slightly higher than the 7 years and 4 months I just mentioned.

However, I am satisfied that my approach above is fair and reflects the quantity of drugs, as well as the defendant’s criminality. I have taken into account all mitigation put forward as well as the defendant’s background. This is his second trafficking conviction, but I will not deal with him as a habitual offender and recidivist, but he should be warned that a third conviction may result in an increase of sentence for that very factor. I will also not, on this occasion, increase the starting point to reflect the aggravating factor identified above, that is, committing this offence 3 months after his release.

Lastly, I see no reason to deviate from what I find is an appropriate starting point I have calculated, and accordingly, I sentence the defendant to 7 years and 4 months.