HKSAR v. Tam Dik Chung

HCCC 123/2019

[2019] HKCFI 2116

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 123 OF 2019

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

The defendant 譚狄翀was charged with two counts of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Chapter 134. The defendant pleaded guilty before a magistrate and was committed to the Court of First Instance of the High Court for sentence.

Summary of Facts

On 13 August 2018, police officers were conducting an anti-dangerous-drug operation in the vicinity of Tsing Chuen Wai Road in Tuen Mun. The police saw a private car driven by the defendant stop near a male on the pedestrian road and the defendant had a conversation with that male after lowering the car window. The police intercepted both and the defendant put up a struggle. He was eventually subdued.

The police searched the car. The following items were found inside the storage compartment:

(1) a transparent resealable plastic bag containing 15 transparent resealable plastic bags containing 3.13 grammes of a solid containing 1.91 grammes of cocaine; and

(2) a transparent resealable plastic bag containing seven transparent resealable plastic bags containing 16.7 grammes of a solid containing 14.5 grammes of ketamine.

The defendant was arrested for trafficking in dangerous drugs. Under caution, he said the ‘coke’ and the ‘K 仔’ belonged to him. And that is Count 1.

A house search was then conducted at a flat situated on the ground floor of No 56A Tsing Chuen Wai Road, and that is the flat. Now, inside the room, the following items were found:

First of all, on a table:

(1) 30 transparent resealable plastic bags;

(2) a transparent resealable plastic bag containing 6.8 grammes of a solid containing 5.16 grammes of cocaine;

(3) a transparent resealable plastic bag containing 18 transparent resealable plastic bags containing 3.71 grammes of a solid containing 2.32 grammes of cocaine;

(4) a glass bottle containing a transparent resealable plastic bag containing 43 transparent resealable plastic bags containing 9.18 grammes of a solid containing 4.66 grammes of cocaine;

(5) a transparent resealable plastic bag containing 29 transparent resealable plastic bags containing 6.26 grammes of a solid containing 3.27 grammes of cocaine;

(6) two electronic scales;

(7) a spoon.

Then inside a bag placed on the floor still inside the room, there were three items:

(8) a transparent resealable plastic bag containing 13 transparent resealable plastic bags containing 25.12 grammes of a solid containing 21.52 grammes of ketamine; and

(9) a transparent resealable plastic bag with a label bearing the words “$10.00” containing 30 transparent resealable plastic bags containing 36.5 grammes of a solid containing 31.6 grammes of ketamine.

And lastly, the 10th item:

(10) a transparent resealable plastic bag containing 31 transparent resealable plastic bags containing 37.2 grammes of a solid containing 32.2 grammes of ketamine.

So the total quantity of drugs seized from the bedroom was:

(1) 98.82 grammes of a solid containing 85.32 grammes of ketamine; and

(2) 25.95 grammes of a solid containing 15.41 grammes of cocaine.

The defendant was arrested in relation to the items found at the flat. Under caution, he said the ‘coke’ and the ‘K 仔’ belonged to him. That is Count 2.

In his video-recorded interview, the defendant said under caution, among other things, the following:

(1) That all the drugs found in the compartment of the car belonged to him.

(2) All the drugs found from the bedroom in the flat also belonged to him.

(3) Only he had the keys to the bedroom and no one else would enter that bedroom.

(4) He worked at construction sites and earning a monthly income of $35,000.

(5) He had been a drug user for about 10 years. He would use $28,000 on drugs per month, and he would take cocaine, ketamine and cannabis.

A total of 115.52 grammes of a solid containing 99.82 grammes of ketamine and 29.08 grammes of a solid containing 17.32 grammes of cocaine were seized in this case. In August 2018, the seized ketamine had an estimated retail value of HK$56,836 and the seized cocaine had an estimated retail value of HK$37,920.

The defendant admitted he was trafficking in the dangerous drugs seized in this case.

Background and mitigation

Based on information from the antecedent statement and what defence counsel Ms Maria So together with Ms Vanessa Ho told this court, the defendant is 29 years old and is single. He has two daughters with his former girlfriend. After separation, the defendant took care of the younger daughter while the older daughter lives with the mother.

The defendant himself was brought up by his lorry driver father after his parents divorced when he was around 4 to 5 years old. The defendant did not have much contact with his mother and the latter died around eight years ago. As his father was working long hours, both the defendant and his elder brother did not have much supervision or guidance when they were growing up. The defendant started transgressing the law at a young age and was sent to the Children and Juvenile Home at first, and later to a supervised dormitory until he was 17.

After the defendant quit school, he befriended undesirable peers and started abusing drugs. He had been sentenced to a drug addiction treatment centre on three occasions, and the defendant claims that now he is free from drugs. In fact, urine tests conducted on the defendant on 16 August 2018 showed a negative result for amphetamine, cocaine, cannabis and opiate.

Despite what the defendant has claimed during the video-recorded interview, counsel confirmed that the defendant did not possess the dangerous drugs in this case for his own consumption. The defendant had worked as a lorry driver and worked in construction sites prior to the arrest. He was responsible for the upkeep of his children, of the daughters. The defendant’s father would assist the defendant financially if needed.

The defendant committed the present offence as he wanted to earn quick money. The defendant is very remorseful. I understand he cannot spend his life in and out of prison as he has the responsibility to his daughters. The defendant has the support of his family and he knows he has to start afresh.

The defendant’s father wrote to me, expressing his regret for not being able to properly supervise the defendant owing to work. He also said his health has deteriorated and he asked for leniency on behalf of the defendant so that the defendant could take care of him and the children. I was also shown a drawing by one of the daughters to the defendant with the wordings “Father, come back soon”. I understand both children did not know the defendant is in prison. The defendant’s father continues to pay to have the helper look after the younger daughter.

Ms So referred me to the authorities and the three tests for the combined drugs: the absurdity test, the conversion test and the ratio test, with the result of 10 years, 7 years and 1 month and 7 years and 2 months respectively. And Ms So urged this court to adopt the conversion test, the lowest of the three.

Ms So and with Ms Ho, of course, stressed that the defendant had pleaded guilty at the earliest available opportunity, which is the biggest mitigation. And they also asked this court to take into account the family circumstances of the defendant and to be as lenient as possible in sentencing him.

Sentence

Trafficking in dangerous drug is a serious offence. A person convicted of this offence on indictment is liable to be sentenced for life and to a fine of $5 million.

In the circumstances of the present case, both offences were committed on the same day and the facts were closely linked. The dangerous drug, cocaine and ketamine in Count 1, were obviously connected with the cocaine and ketamine in Count 2. So the proper approach is to have regard to the total amount of dangerous drug in both Count 1 and Count 2 to arrive at an overall starting point. See the case of HKSAR v Chow Yu Chi CACC 359/2000, HKSAR v Cheung Kwok Leung [2003] 3 HKLRD 542 and HKSAR v Wong To [2001] 4 HKC 499.

For the trafficking of more than one kind of drugs, there are two sentencing approach open to the sentencing judge. There is the individual approach and the combined approach, and the case is HKSAR v Yip Wai Yin [2004] 4 HKC 367. In the circumstances of the present case, I will adopt the combined approach, using cocaine as the basis and adjust the starting point after taking into account the significant quantity of ketamine.

So the cocaine first. The quantity of cocaine involved is 17.32 grammes which falls into the category of 10 to 50 grammes with a starting point of 5 to 8 years, and that is actually the case of Pedro Nel Rojas adopting the guidelines in Lau Tak Ming. A starting point of 5½ years of a first offender would be appropriate.

Now, the ketamine. The quantity of ketamine is 99.82 grammes which falls into the “50 to 300 grammes” category and attracts a starting point of 6 to 9 years, and that is the case of Hii Siew Cheng. A starting point of 6½ years for a first offender would be appropriate.

So if all the dangerous drugs were cocaine, for 117.14 grammes, the starting point would have been around 10 years, that is, within the band of 50 to 200 grammes, 8 to 12 years’ starting point. So I will bear this in mind to ensure the final result of combining the smaller amount of cocaine with the larger amount of ketamine would not be absurd, in other word, the absurdity test.

I agree with Ms So and I will use the conversion test to arrive at the starting point. As submitted by Ms So, using a starting point of 6.5 years for 99.82 grammes of ketamine, that would be equivalent to around 21 grammes of cocaine. And 17.32 grammes plus 21 grammes equal to 38.32 grammes, and this quantity would attract a starting point of 7 years and 1 month on pure arithmetic calculation.

This is not the first time the defendant has been convicted of trafficking in dangerous drugs. He had been convicted of two counts of trafficking in dangerous drugs in 2010. He was sentenced to a drug addiction treatment centre for both trafficking charges. I understand the charges involved a few grammes of ketamine. I accept that the relatively lighter sentence supports that claim.

The defendant also had two previous convictions for possession of dangerous drugs and among other non-drug-related offences. So, in other words, the defendant is not a first offender. He had drug-related offences. Two of them were the same, trafficking in dangerous drug. But I do bear in mind that the quantity involved must be small because he was only sentenced to a treatment centre and not to a prison.

And this present case involves two separate charges and two different kinds of drugs. So having considered all the circumstances of the case and the defendant’s background, I am of the view that a proper starting point is one of 7 years and 3 months. Defendant pleaded guilty at the earliest available opportunity and is entitled to the full one-third discount.

So with the discount, the sentence is one of 4 years and 10 months. So for the 1st count, the defendant is sentenced to 4 years and 10 months’ imprisonment; the 2nd count the same, 4 years 10 months’ imprisonment; both sentences to run concurrently, making a total of 4 years and 10 months’ imprisonment.