HKSAR v. Tam Yue Hin

HCCC 331/2018

[2019] HKCFI 719

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 331 OF 2018

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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 two amended charges of trafficking in dangerous drugs at committal. Today, he confirms his guilty pleas and his agreement to the Summary of Facts before me.

The dangerous drugs concerned in amended Charge 1 are as follows:

(a) a plastic zip-lock bag containing 43 plastic bags containing a powder of 35.6 grammes of ketamine;

(b) two plastic zip-lock bags containing a solid of 398 grammes of ketamine; and

(c) a plastic zip-lock bag containing 117 plastic bags containing a solid of 29.1 grammes of cocaine.

The dangerous drugs concerned in amended Charge 2 are as follows:

(a) two plastic bags containing a solid of 395 grammes of ketamine; and

(b) a cylindrical box containing a solid of 45.8 grammes of cocaine and five plastic bags containing a solid of 3.65 grammes of ketamine.

Facts

Briefly stated, the arrest of the defendant was as a result of a stop and search on the street by Customs officers.

At about 2033 hours on 29 December 2017, Customs officers in plain clothes were patrolling along Nathan Road, Tsim Sha Tsui, when they spotted the defendant holding a black handbag under his armpit outside Tsim Sha Tsui Mansion, 83‑97 Nathan Road, Tsim Sha Tsui. Looking suspicious, the defendant was intercepted and searched by the Customs officers. As a result, the dangerous drugs concerned in amended Charge 1 were found inside the right-front pocket of defendant’s jacket, as well as inside his handbag, and the defendant was immediately arrested and under caution he basically said the ketamine and the cocaine all belonged to him for his own consumption. The Customs officers also found cash HK$15,044 inside the defendant’s handbag.

When asked where he had been just now the defendant said he had just come down from 6th Floor, Flat A2 (‘the subdivided room’). The defendant was then taken back to the subdivided room. With the password combination lock provided by the defendant and the key card found in the defendant’s wallet, the Customs officers successfully gained entry into the room. Inside the middle drawer of the bed, the Customs officers found a shoebox containing the dangerous drugs concerned in amended Charge 2. Under caution defendant said the five big packets were ‘K Chai’ and those inside the box were ‘Coke’ and ‘K Chai’. All the drugs belonged to him and were for his own consumption.

The Customs officers also found inside the room packaging paraphernalia, including empty plastic zip-lock bags, sealing machine, electronic scale, scissors, bowl and plastic spoon. Also found was a lease agreement for the room which showed that the defendant was the tenant of the room.

The estimated market retail value of the total drugs seized was HK$823,566.62.

By pleading guilty to both charges, the defendant now admits and accepts that he was unlawfully trafficking in the seized dangerous drugs.

Criminal Record and Background of the Defendant

According to the antecedents statement, the defendant was born on 27 October 1997, making him now 21 years of age. He has never been in trouble with the law before and has a clear record. The defendant has Form 5 education and comes from a middle class family. At the time when he was arrested, he was working as an investment consultant earning an average monthly income of HK$20,000. He is still single and living with his parents and a younger brother who is still studying Form 5.

Mitigation

In mitigation Mr Yeung, counsel for the defendant, submitted to the court a mitigation letter written by the parents. In the letter, the parents blamed themselves for busily occupied by their work over the years and did not have enough care and concern with the defendant. The parents who are both in their 50s and are still working, said their son is now very remorseful and asked the court to be as lenient as possible. I can fully understand the feelings of the parents.

Mr Yeung further informed the court that the defendant was abusing drugs even when he was a teenager in school, but the parents were all along kept in the dark about his drug problems. After graduation from school, the defendant has done some odd jobs, such as kitchen worker, and from time to time he would even go to Macau for gambling, and in a couple of months before his arrest, the defendant has no income as his income was commission based and he has no basic salary, but he did not turn to his parents for assistance. He was then approached by a drug dealer to assist in the trafficking of the drugs in the present case for reward of $10,000. Driven by economic pressure, the defendant agreed to engage in drug trafficking and committed the present offences.

It is, of course, very foolish for the defendant to commit a serious crime like this to solve his economic problem which has ruined his entire youth. I hope that on his release from prison for this offence he will not return to a career in crime, but that is a matter entirely in his hands.

Sentencing Considerations

Trafficking in a dangerous drug is, of course, a very serious offence. The maximum sentence is life imprisonment and a fine of HK$5 million.

The defendant has been convicted of a most serious drug trafficking offence involving the trafficking in large quantity of two different types of drugs, cocaine and ketamine. The ketamine was in two forms, 796.65 grammes of ketamine in solid form and 35.6 grammes of ketamine in powder form. Taken together, he was trafficking in a total of 832.25 grammes of ketamine. In respect of the cocaine, the defendant was trafficking in 67.7 grammes.

Although there are two separate charges, the nature of the dangerous drugs in question for the two offences are the same and as the defendant has rented the room for the dealing and storage of the dangerous drugs and he had also admitted to the Customs officers that just came out from his room before he was intercepted, I am satisfied that the dangerous drugs found on his persons were originated from this room and, therefore, in sentencing I shall take into account the total quantity of the dangerous drugs of both charges and I shall order the sentences on both sentences to run concurrently.

In HKSAR v Wong Kin Kau, unreported, CACC 269/2009, the Court of Appeal said:

“The Applicant was also convicted on two other counts. He was arrested outside a building in Kwai Chung and had the drugs in the 1st Count on his person. The drugs in the 2nd and 3rd Counts were found at his home on the 3rd floor of the same building. In such circumstances a concurrent sentence is appropriate.”

In different cases the Hong Kong Court of Appeal has set out a number of principles and sentencing guidelines for judges to follow when they are sentencing a defendant convicted of a drug trafficking offence. Relevant to this case for sentencing purpose, cocaine is to be treated as the same as heroin, see AG v Rojas [1994] 1 HKC 342.

The sentencing range is to be determined by the quantity of the narcotic being trafficked, not the mixture in which it is contained, thus the quantity for which this defendant must be sentenced for the two charges is 67.7 grammes of cocaine and 832.25 grammes of ketamine.

The sentencing ranges for trafficking in heroin and cocaine are to be taken from the guidelines laid down by the Court of Appeal in the case of R v Lau Tak Ming & Ors [1990] 2 HKLR 370. There, the Court of Appeal said that for amounts of between 50 to 200 grammes, the sentencing range should be 8 to 12 years’ imprisonment.

The sentencing ranges for trafficking in ketamine are to be taken from the guidelines laid down by the Court of Appeal in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1. There the Court of Appeal said that for amounts of between 600 to 1,000 grammes, the sentencing range should be 12 to 14 years’ imprisonment.

The Court of Appeal has made clear that it requires exceptional circumstances to justify a departure from the guidelines and that, whilst the sentencing judge may retain some degree of discretion, the sentence imposed should normally be within the suggested bands. No such circumstances are present in this case. However, a strict application of the sentencing tariff is not possible when sentencing an offender for trafficking in more than one dangerous drug.

In a number of cases the Court of Appeal has recommended the course that trial judges should adopt when sentencing in these circumstances. There are now two different methods of proceeding referred to as the individual approach and the combined approach and which approach should be adopted depends upon the circumstances of each case. The case was HKSAR v Ko Ka Hing [2009] 4 HKLRD 656.

For the cocaine, according to the tariff, the appropriate starting point will be 8 years and 4 months and for the ketamine 13 years and 2 months. If one simply adds the two together this would make a total of 21 years and 6 months. It would be a disproportionate starting point and absurd for the culpability of this defendant’s drug trafficking.

In my view, the appropriate course is to use the combined approach to convert the quantity of cocaine to ketamine or vice versa by comparing the two different quantities with reference to the two sentencing tariffs. Upon the request of this court, Mr Cheng, SPP for the prosecution, and Mr Yeung for the defendant, have both helpfully prepared a sheet setting out the respective combined starting points for the total quantity of cocaine and ketamine in question.

Based on the absorptivity test, the conversion test and the ratio tests as stated in HKSAR v Chan Yuk Leong CACC 318/2013. Both Mr Cheng and Mr Yeung had agreed that based on the conversion test, the total starting point for the two charges by converting ketamine to cocaine would be 14 years and 2 months. I have checked the calculations and agree with their resultant figures. Both counsel have prepared a helpful and written calculations for which I am grateful for their assistance.

For the purpose of the conversion test, one starts with identifying the main or more serious drug in the case, as described in HKSAR v Chan Ho Wai CACC 129/2008, as the basis for conversion. As Justice McMahon said in that case:

“Identifying what is the more serious drug in a given case involved the use of common sense.”

In the present case, although the cocaine concerned is not of the largest quantity when compared with the ketamine, but its proportion is still significant. Obviously cocaine is a hard drug and its potency is much higher than ketamine. Looking at the matter in the round, I regard the most serious drug in this case is cocaine.

For sentencing purposes, trafficking in 832.25 grammes of ketamine would be equivalent to trafficking in about 277.42 grammes of cocaine. Thus, by the conversion test, trafficking in the cocaine and ketamine in these two charges concerned (which would be equivalent to trafficking in about 345.12 grammes of cocaine) attracts a notional starting point of 14 years and 2 months.

Turning to the ratio test, both counsel agree that the ratio test would yield a notional starting point of 14 years and 1 month. Based on the above, I would adopt the notional starting point of 14 years and 2 months’ imprisonment for trafficking in the cocaine and ketamine concerned in relation to both charges.

Turning to the aggravating features. Firstly, it is now established that the ability of the trafficker to cater to a wider market by trafficking in a multiplicity of drugs should be considered, see HKSAR v Yim Hung Lui, Ricky CACC 266/2011, at paragraph 11 of the judgment.

Secondly, whilst there’s no evidence that the cocaine and ketamine would be mixed before sale, the possibility remained that the customer may obtain both cocaine and ketamine from the defendant.

In my view, there should be a further upward adjustment from the starting point by 4 months for the two aforesaid aggravating features. Taken together, leading to a starting point of 14½ years’ imprisonment.

Turning to the mitigating factors. The defendant has a hitherto clear record. He pleaded guilty at the earliest opportunity, which is a clear indication of his remorse. Apart from that, there are also special circumstances on the paper which justify a more lenient view to be taken of the defendant.

In the end, I will reduce the starting point by 42.5 per cent and he is sentenced to 8 years and 4 months’ imprisonment.

For the reasons that I have just elaborated upon, I sentence you to 8 years and 4 months’ imprisonment on each charge, the sentences are to run concurrently.